Abraham Sason, Leah Yohannan, Rebeca Yohannan and Soshana Josephai v. Elias Josephai, Sheemon Josephai alias Simon Josephai and Penina Cohen

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941** ## **CRP.No.503 of 2010** **AGAINST THE ORDER/JUDGMENT IN OS 1040/2007 of PRINCIPAL SUB COURT,ERNAKULAM DATED 16-06-2010** ## **REVISION PETITIONERS/PLAINTIFFS:** - **1 ABRAHAM SASON, S/O.JOSEPHAI, AGED 44 YEARS, RESIDING AT 40/3187,BROADWAY,ERNAKULAM,KOCHI - 682 031.** - **2 LEAH YOHANNAN, AGED 55 YEARS W/O.MOSHE YOHANNAN, SHEDROT HAETZEL,44/8, KIRYAT SHIMONA, ISRAEL, REP.BY THE POWER OF ATTORNEY HOLDER MRS.MIRIAM ELIAS,W/O.LATE DR.BASIL ELIAS, AGED 59 YEARS, HOUSE NO.36/106, KOTTENCANAL ROAD, KOCHI - 682 017.** - **3 REBECA YOHANNAN, AGED 47 YEARS W/O.BAZALEL YOHANNAN,AMI HAI,9/15,RAMLE,ISRAEL, REP.BY THE POWER OF ATTORNEY HOLDER MRS.MIRIAM ELIAS,W/O.LATE DR.BASIL ELIAS,AGED 59 YEARS, HOUSE NO.36/106,KOTTECANAL ROAD, KOCHI - 682 017.** - **4 SOSHANA JOSEPHAI, AGED 39 YEARS D/O.JOSEPHAI, KATZA NELSON, BAT YAH, ISRAEL, REP.BY THE POWER OF ATTORNEY HOLDER MRS.MIRIAM ELIAS, W/O.LATE DR.BASIL ELIAS,AGED 59 YEARS, HOUSE NO.36/106, KOTTECANAL ROAD, KOCHI - 682 017.** **BY ADV. SRI.S.RADHAKRISHNAN** ## **RESPONDENTS/DEFENDANTS:** - **1 ELIAS JOSEPHAI,S/O.JOSEPHAI, RESIDING AT K.K.PADMANABHAN ROAD, NEAR POWER HOUSE, KOCHI 682 017.** - **2 SHEEMON JOSEPHAI ALIAS SIMON JOSEPHAI S/O.JOSEPHAI, RESIDING AT NAVODAYA C-10, SARANYA APARTMENTS, KALOOR, KOCHI 682 017.** CRP 503/10 -2- **3 PENINA COHEN, AGED 49 YEARS D/O.JOSEPHAI, REHOV SHAPIRA, HOUSE NO. 159/5, ASHKELON, ISRAEL.** **BY ADV. SRI.K.R.VINOD** ## **OTHER PRESENT:** **K R VINOD** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.04.2019, THE COURT ON 18.07.2019 PASSED THE FOLLOWING:** CRP 503/10 -3- ## **O R D E R** [C R P No.503/2010] Plaint A schedule property having an extent of 6.875 cents with a two storied building therein bearing Corporation Nos.3187 and 3188 in Ward No.40 described more particularly as Plaint B schedule, belonged to late Mrs.Abhi Gayel, who had nine children, including the four plaintiffs and the three defendants. The first plaintiff avers that his mother had bequeathed plaint A and B schedule properties to him and the third defendant, vide a registered Will on 28.5.2003. She died on 19.5.2007 and thus, the first plaintiff and the third defendant became the owners of the properties in exclusion to all other legal heirs of the deceased Abhi Gayel. Plaintiffs 2 to 4, and the third defendant, migrated to Israel and are no longer interested in the properties. Defendants 1 and 2, the brothers of the plaintiffs, are residing separately away from the CRP 503/10 -4- properties. 2. Late Abhi Gayel, and prior to her, her mother Leya were started and were conducting a cassette shop by the name 'New Manora Cassette Shack' in building No.3188/40. Late Abhi Gayel had obtained D&O licence for conducting the shop, consequent to the demise of her mother. The first plaintiff was conducting an agency by the name 'Zion Agencies' in one of the shop rooms and another room was used as a store. The first plaintiff claims to be residing in the remaining portion of the building, and the entry to the residential quarters was through one of the shutters on the front of the building. He is a bachelor, and the business that he conducts in the plaint B schedule building is his only means of livelihood. Consequently to the demise of his mother, the first plaintiff claims that he has been in exclusive possession of the property. 3. While so, on 22.10.2007 defendants 1 and 2 and their henchmen allegedly trespassed into the CRP 503/10 -5- building, removed the board 'Zion Agencies' and thereafter, modified the shop rooms making alterations and erected two flex boards namely 'Simon Navodaya Video Vision' and a fancy shop named 'Elegance'. The first plaintiff and his nephew Dan Elias attempted in vain to prevent defendants 1 and 2 and their henchmen from taking over possession of the property by force. They were severely manhandled and were hospitalised till 23.10.2007. Though Crime No.1638/2007 was registered against defendants 1 and 2 and their men, the Police were slothful in action, and did not take any concrete steps against defendants 1 and 2. On 24.10.2007, the remaining portion of B schedule building was encroached upon by defendants 1 and 2, thereby preventing the entry of the first plaintiff to the residential quarters. A petition filed before the Commissioner of Police on 25.10.2007 was of no avail. The cassette shop belonging to the first plaintiff was raided by defendants 1 and 2, and the cassettes and CDs in the CRP 503/10 -6- shop misappropriated. 4. The first plaintiff approached the High Court with WP(C) No.32053/2007 seeking police protection against defendants 1 and 2. Within six months of being illegally dispossessed, the plaintiffs approached Sub Court, Ernakulam with OS No.1040/2007 seeking reliefs under Section 6 of the Specific Reliefs Act, 1963 ('Act' for short) seeking restoration of the first plaintiff's previous possession. 5. Per contra, defendants 1 and 2 in the suit contend that the suit is bad for non-joinder since there are three more legal heirs of late Abhi Gayel who have not been impleaded. The property belonged to late Abhi Gayel, and on her demise, devolved upon all her legal heirs equally. Alleged execution of a Will bequeathing the property exclusively to the first plaintiff and the third defendant is challenged by the contesting defendants. It is alleged that the Will propounded is concocted CRP 503/10 -7- and fabricated. The first plaintiff is conducting a stationary shop in the premises and not a cassette shop as alleged. It is contended that 'New Manora Cassette Shack' originally run by the grandmother of the parties to the suit, and thereafter by their mother, was being conducted by the second defendant and was recently renovated. The first plaintiff was not using any room as store as alleged and that the said room is used by the first defendant for his concern named 'Cochin Blossoms'. It is also contended that till 1997, the shop rooms were in the possession of one Kaliyappa Chettiar as tenant. The first defendant conducted the eviction proceedings against Kaliyappa Chettiar and obtained a favourable order, litigating right up to the Apex Court. 6. The first plaintiff being a bachelor, led a wayward life, which on being questioned by defendants 1 and 2, led him to inimical terms with them. The power of attorney holder of plaintiffs 2 to 3 namely Miriam Elias is yet another sister of the CRP 503/10 -8- parties to the suit, whose son Dan Elias is assisting the first plaintiff, in expectation of ultimately usurping the property all for himself. Plaintiffs 2 to 4 and the third defendant have settled down in Israel and are not interested in the property in any more. It is the first plaintiff and the aforesaid Dan Elias who attempted to dispossess defendants 1 and 2 from the shop rooms in their possession, by inflicting injuries on them. Crime No.1634/2007 was registered against them for causing hurt to defendants 1 and 2. Crime 1638/2007 referred to by the plaintiffs is only a counter blast. The plaintiffs have never been in exclusive possession of the property, and therefore, recovery under Section 6 of the Act is not sustainable, is the contention of the defendants. 7. The plaintiffs examined PWs 1 to 8. No oral evidence was adduced by the defendants. Exts.A1 to A27, X1 to X4, B1 and C1 were marked. 8. On appreciation of the evidence adduced CRP 503/10 -9- before him, the learned Sub Judge found that the plaintiffs and the defendants were apparently coowners in joint possession of the property. There is no evidence to show that the first plaintiff was in possession of the property in exclusion to the other legal heirs of Abhi Gayel. The documentary evidence indicates that the shop licence was obtained in the name of Abhi Gayel. The electricity bills were also in the name of the deceased. Mutation has not been effected by the first plaintiff consequent to the demise of his mother, acting upon the Will purportedly executed in his favour. The dispossession of the first plaintiff by defendants 1 and 2 is not proved to the satisfaction of the court below. His attempt was only to create evidence to prove his previous exclusive possession. In the absence of proof to the effect that the first plaintiff was in exclusive possession of B schedule property, he cannot seek any relief against defendants 1 and 2 who claim to be the co-owners. The suit was thus CRP 503/10 -10- dismissed. 9. Aggrieved by the dismissal of the suit by the learned Sub Judge, the plaintiffs have come up with this revision. 10. Section 115 of the Code of Civil Procedure provides for revision in matters where there is no appeal provided. A revision is maintainable when the subordinate court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. 11. It is settled law as a revisional court, under Section 115 of the CPC, the High Court cannot re-appreciate the evidence, and cannot set aside the findings of the court below by taking a different view of the evidence. The High Court is empowered to interfere with the findings on facts, if the findings are perverse, and there has been non appreciation or CRP 503/10 -11- non consideration of material evidence on record by the court below. Simply because another view of the evidence is also possible, it is not a ground by the High Court to interfere, exercising its revisional jurisdiction [See _**Masjid Kacha Tank, Nahan** v._ _**Tuffail Mohammed, AIR 1991 SC 455, Renuka Das** v._ _**Maya Ganguly (2009) 9 SCC 413, Unus Ali v. Khursheed Akram**_ _**(2008) 7 SCC 293**_ ]. The revisional jurisdiction should not be exercised in such a manner as to convert a revision into an appeal **[** _**Ram Avtar & Others** v._ _**Ram Dhani & Others (AIR 1997 SC 107)]**_ . In view of the precedents stated above, it is not possible for this Court to re-appreciate the evidence adduced before the trial court to arrive at a different conclusion, so long as the decision taken by the court below is not perverse. 12. The learned counsel for the revision petitioners would contend that in a suit for recovery of possession under Section 6 of the Act, the question of title is wholly irrelevant, since such CRP 503/10 -12- suits are tried summarily and the relief which the courts are competent to grant in such suits is one of recovery alone. The decree passed under Section 6 of the Act is neither appealable nor liable to be reviewed **[** _**Rosily v. Annam (2003 KHC 1113)**_ **]** . 13. The learned counsel for the revision petitioners contends that the finding of the learned Sub Judge that no suit for recovery of possession under Section 6 of the Act is maintainable against a co-owner is apparently erroneous. He relies on a decision of this Court in _**Reghvaran N.K. and Others** v._ _**N.K.Murali [2014 (4) KHC 258]**_ , wherein it is held by this Court that no person can take law in his own hand and dispossess anyone otherwise than in due course of law, however good his title may be. Remedies under Section 6 of the Act are available to one co-owner or co-owners against another co-owner or co-owners in case of forcible dispossession by the latter without consent of the former, otherwise than in due course of law. CRP 503/10 -13- 14. In order to prove a sustainable case under Section 6 of the Act, the first plaintiff has to prove that he had been in exclusive possession of the property and has been dispossessed by a stranger or a co-owner, who was not in possession of the property, within the stipulated period of six months prior to the filing of the suit. Under such circumstances, the plaintiff need not prove his title to the suit. But it is incumbent upon him to prove that he was in possession of the property to the exclusion of the other co-owners. The evidence adduced by the plaintiffs before the trial court has not found favour with the learned Sub Judge, and it was held that the first plaintiff has failed in proving his exclusive possession over the property. Nor did he succeed in establishing that the defendants 1 and 2 were not in possession of any portion of the property. Soon after the demise of their mother Abhi Gayel, the siblings fell apart. The documents were all in the name of the mother and CRP 503/10 -14- apart from the Will, the first plaintiff does not have any conclusive evidence to prove his exclusive possession over the property. Co-owners are deemed to be in joint possession of the property, unless there is proof regarding the co-owners being dispossessed or remaining out of possession. The mere fact that the defendants 1 and 2 were residing separately and that the first plaintiff alone was residing in the house attached to the shop rooms situated in the plaint schedule property is no reason to conclude that the defendants 1 and 2 were not in possession of any portion of the property, either exclusively, or as co-owners. 15. In _**Reguvaran M.K. and Others**_ ( _supra_ ), the facts and evidence adduced before the court was sufficient to conclude that the co-owners had forcibly dispossessed the co-owner in possession. The evidence in this suit does not lead to such a conclusion of either exclusive possession of the first plaintiff or his being dispossessed forcibly CRP 503/10 -15- by defendants 1 and 2. As mentioned earlier, this Court cannot, sitting in revision re-appreciate the evidence adduced before the trial court, unless there is an apparent failure of justice or perversity on the part of the court below. I find no such error or perversity in the impugned judgment calling for interfere in revisional jurisdiction. The revision fails and the same is accordingly dismissed. The parties will suffer their respective costs. **Sd/-** ## **ASHOK MENON** **JUDGE** jg