Krishnakumar, S/o K. Sankaran Thampi v. V. Gopalakrishnan and E. Sulochana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 22ND DAY OF AUGUST 2014/ 31ST SRAVANA, 1936** **CRP.No. 114 of 2009 ( ) ------------------------** **AGAINST THE JUDGMENT IN OS 825/2007 of PRINCIPAL MUNSIFF'S COURT, ERNAKULAM DATED 31-03-2008.** **REVISION PETITIONER(S)/2ND DEFENDANT:** **--------------------------------------** **KRISHNAKUMAR, S/O.K.SANKARAN THAMPI, AGED 30 YEARS, EWS 411, NORTH SIDE CITY CABLE VISION, GANDHI NAGAR, ERNAKULAM, KOCHI-36.** **BY ADVS.SRI.T.K.VIPINDAS SMT.P.K.PRIYA** **RESPONDENT(S)/PLAINTIFF & 1ST DEFENDANT:** **-----------------------------------------** **1. V. GOPALAKRISHNAN, S/O.VISWANATHAN, AGED 52, RESIDING AT JEEVAN NIDHI, L.I.G-645, PANAMPILLY NAGAR, ERNAKULAM, KOCHI-36.** **2. E.SULOCHANA, W/O. C.V.KUMARAN, AGED 55, EZHEDATH HOUSE, VALLACHIRA, THRISSUR DISTRICT.** **R1 BY ADV. SRI.A.BALAGOPALAN R1 BY ADV. SRI.A.RAJAGOPALAN R2 BY ADV. SRI.PHILIP T.VARGHESE** **R2 BY ADV. SRI.THOMAS T.VARGHESE** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 'C.R.' ## **K. HARILAL, J.** **-----------------------------------------------------C.R.P. No. 114 of 2009-C -----------------------------------------------------Dated this the 22[nd] day of August, 2014** ## **ORDER** The revision petitioner is the 2[nd] defendant in O.S. No.825/07 on the files of the Principal Munsiff's Court, Ernakulam. The 1[st] respondent herein is the plaintiff in the suit. The suit is filed against the petitioner and the 2[nd] respondent herein, who is the 1[st] defendant in the suit. The suit was one for restoration of possession of the plaint schedule building and for permanent prohibitory injunction restraining the defendants from inducting strangers into the plaint schedule building, filed under Sec.6 of the Specific Relief Act (for short 'the Act'). ## **C.R.P. No. 114 of 2009** -: 2 :- 2. The plaint averments in short are as follows (parties are referred to as in the Original Suit): The first defendant is the owner of Plot No.515 situated in Gandhi Nagar, Ernakulam. She obtained it under the EWS Scheme of the GCDA on 25/11/1980. She executed an agreement with the GCDA agreeing to pay the balance purchase price of the house in 216 monthly instalments of `52.57 each. After taking possession of the building on 25/11/1980, the building was assessed in the name of the Secretary, GCDA, with No.38/1144. On 30/11/1980, the plaintiff entered into an agreement with the 1[st] defendant for letting the building on leave and licence. The agreement was for a period of three years and monthly payment was `50/-. `3,500/- was paid as advance after the agreement and the plaintiff took possession of the building and started residence with his family. Subsequent to the execution of the agreement, the 1[st] defendant approached the plaintiff and told him that she is prepared to sell the building **C.R.P. No. 114 of 2009** -: 3 :- to the plaintiff for a sale consideration of `75,000/-, after adjusting `3,500/- given as advance, the balance amount of `71,500/- has to be paid by the plaintiff to the 1[st] defendant and the same was paid on 20/1/1981. An endorsement was made to the above effect in the agreement on 20/1/1981. She handed over all the documents pertaining to the building to the plaintiff. Besides, according to the said agreement, the plaintiff has to remit all balance instalments to the GCDA. The plaintiff was regular in paying the instalments to the GCDA. The last and final instalment was paid on 23/6/2005. The plaintiff also paid property tax to the Corporation. Though the plaintiff tried to contact the 1[st] defendant for getting assignment of the building, he could not contact her since she changed her residence. Even now the whereabouts of the 1[st] defendant are not known to the plaintiff. The plaintiff continued his residence in the building till 1995. Between 1995 to 2006, he let out the building to various tenants. In the year 2006, ## **C.R.P. No. 114 of 2009** -: 4 :- plaintiff renovated the building expending about ` 3 lakhs. He replaced the tiled roof with RCC roofing. Though the building was not let out after 2006, it is in the absolute possession of the plaintiff. On 26/6/2007, the plaintiff was summoned to the Gandhi Nagar Police Station based on a complaint filed by the 2[nd] defendant. On enquiry, it is understood that a complaint has been filed by the 2[nd] defendant alleging that the plaintiff trespassed into the plaint schedule building on 25/6/2007 and the building is in the ownership of the 2[nd] defendant. When the plaintiff submitted all the documents before the police, the police directed the parties to approach the civil court. Thereafter, on 29/6/2007, the 2[nd] defendant in collusion with the 1[st] defendant criminally trespassed into the plaint schedule building and forcibly dispossessed the plaintiff from the building and illegally took possession of the same. Therefore, the plaintiff approached the civil court for a decree of restoration of possession and prohibitory injunction **C.R.P. No. 114 of 2009** -: 5 :- under Sec.6 of the Act. 3. The 1[st] defendant filed a written statement in the court below contending as follows: The 1[st] defendant is an unnecessary party to the suit. The plaintiff was not in possession of the plaint schedule building at any time during six months prior to the institution of the suit. Therefore, no suit can be filed under Sec.6 of the Act. It is denied that the plaintiff renovated the building expending more than `3 lakhs. The suit is not properly valued. The plaintiff has filed the suit raising false and vexatious claims. He was sent out of the plaint schedule building in the year 1995 and he was not even in permissive occupation of the building at any time thereafter. It is denied that the plaintiff offered sale of the building to the plaintiff and received `71,500/-. She has not handed over possession or occupation of the building to the plaintiff. The plaintiff was only allowed to occupy the building as a licensee from 30/11/1980. No endorsement was made on the reverse side of page **C.R.P. No. 114 of 2009** -: 6 :- No.1 of the agreement. No documents were handed over to the plaintiff as alleged. The 1[st] defendant has not authorised the plaintiff to make payment of any instalments to the GCDA. The plaintiff was in occupation of the building from 30/11/1980 to 1995 as a licensee. He defaulted in paying the licence fee and when the licence fee was demanded, he evaded the payment. Occasionally he paid part of the defaulted licence fee payable to the 1[st] defendant to the GCDA as per express instructions given by the 1[st] defendant as an agent. It is denied that he paid last and final instalment on 23/6/2005. The claim that he paid building tax etc., is not correct. Due to the persistent default in paying licence fee, the 1[st] defendant demanded the plaintiff to vacate the building. In 1995, the plaintiff obtained a better building in Panampilly Nagar and shifted his residence. The 1[st] defendant was in occupation of the building. It was sold to the 2[nd] defendant on 12/3/2006. After 12/3/2006, the 2[nd] defendant is in occupation of the **C.R.P. No. 114 of 2009** -: 7 :- building. It is denied that the plaintiff let out the building to various tenants between 1995 to 2006. The documents produced by the plaintiff were entrusted to the 2[nd] defendant at the time of sale and plaintiff has illegally taken away those documents. 4. The 2[nd] defendant filed a written statement in the civil court contending as follows: He denied the agreement dated 30/11/1980 between the plaintiff and the 1[st] defendant. He also denied the payment of `71,500/- by the plaintiff to the 1[st] defendant and endorsement in the agreement. He denied that the plaintiff is paying building tax and property tax. The modification and spending of `3 lakhs by the plaintiff is also denied. The 1[st] defendant approached the 2[nd] defendant for sale of the property. Accordingly, an application was made before the Secretary, GCDA, on 24/1/2007 to transfer the allotment in the name of the 2[nd] defendant. On 12/3/2007, the 1[st] defendant put the 2[nd] defendant in possession of the building. On 13/3/2007, the Secretary, GCDA, has passed an order **C.R.P. No. 114 of 2009** -: 8 :- transferring the allotment in the name of the 2[nd] defendant. Therefore, from 12/3/2007 onwards the 2[nd] defendant is in possession of the building. On 25/6/2007, during the absence of the 2[nd] defendant, the plaintiff attempted to trespass into the building by breaking open the lock of the gate and the house and took some files. The 2[nd] defendant informed the matter before the Kadavanthara Police Station and the plaintiff was summoned to the Police Station. The plaintiff relied upon the alleged licence deed. There was no endorsement on the reverse side of page No.1 of that deed. The police directed the plaintiff to approach the civil court. The 2[nd] defendant denied that on 29/6/2007 he trespassed into the plaint schedule property and forcibly dispossessed the plaintiff and illegally took possession of the building. The plaintiff is not entitled to restoration of possession. It is denied that the documents executed between the 1[st] defendant and the 2[nd] defendant are created as a result of fraud and collusion. Since the **C.R.P. No. 114 of 2009** -: 9 :- 2[nd] defendant is in absolute possession of the plaint schedule property as on the date of cause of action, the suit is not maintainable. 5. The learned counsel appearing for the revision petitioner/2[nd] defendant advanced arguments challenging the findings whereby the court below allowed the Original Suit as prayed for. According to him, the judgment passed by the court below is illegal, unjust and unsustainable in law. The reasoning of the court below is perverse and liable to be set aside. The court below has committed a material irregularity in answering issue No.5 in favour of the plaintiff. The court below ought to have found that the value of the subject matter of the suit was exceed the pecuniary jurisdiction of the court below. The plaintiff miserably failed to prove that he was in possession of the plaint schedule property from 2/2/2007 to 2/7/2007. No evidence let in by the plaintiff to establish the said claim. Similarly, absolutely no evidence to show that the plaintiff was dispossessed from the property **C.R.P. No. 114 of 2009** -: 10 :- during the above said period. The court below committed an illegality in enquiring into the possession of prior period which was irrelevant in a suit filed under Sec.6 of the Act. The court below ought to have found that the relief under Sec.6 of the Act is available to those who have been physically dispossessed. Legal dispossession will not come under the scope and extent of Sec.6 of the Act. The court below miserably failed to appreciate the documentary evidence produced by the defendants; but at the same time unreasonable and irrational inference had been drawn from the documents produced by the defendants. 6. Per contra, the learned counsel for the plaintiff contended that the plaintiff has successfully proved the possession of the plaint schedule property from 2/2/2007 to 2/7/2007 in continuation of the earlier possession of the property from 1980 onwards. According to the learned counsel for the plaintiff, the scope and extent of the jurisdiction under Sec.6 of the **C.R.P. No. 114 of 2009** -: 11 :- Act would be confined not only to physical possession but also legal dispossession also. The defendants miserably failed to prove possession of the property either legal or physical. The court below can be justified in appreciating the evidence adduced by the plaintiff which would show the undisputed possession over the plaint schedule property from 1980 to the date of dispossession. The hesitation of the 1[st] defendant to mount the box speaks volumes and adverse inference can safely be drawn against the contention raised by the 2[nd] defendant. It is pertinent to note that the 2[nd] defendant has no case that he himself paid the instalments to the GCDA and similarly he miserably failed to prove that the plaintiff had surrendered the plaint schedule property in the year 1995, as contended by the 1[st] defendant. Thus, the defendants advanced arguments to justify the impugned judgment. 7. In view of the rival contentions advanced at the Bar, the question to be considered is whether the ## **C.R.P. No. 114 of 2009** -: 12 :- court below, has failed to exercise jurisdiction vested in it or has exercised jurisdiction illegally or with material irregularity? 8. First of all, I must remind myself the scope and extent of the jurisdiction of the court under Sec.6 of the Specific Relief Act. This section gives a special privilege to the person who was in possession of the immovable property and and dispossessed unlawfully to recover possession, notwithstanding his or other parties' title, if the suit is brought within six months from the date of dispossession. The principle embodied in the section is that no person is allowed to take law in his own hand without recourse to due process under law. In case, the plaintiff is dispossessed, it entitles them to succeed simply by proving: (i) that he was in possession of the immovable property; (ii) that he has been dispossessed by the defendant; (iii) that the dispossession was otherwise than in due course of law; and (iv) that dispossession would take place **C.R.P. No. 114 of 2009** -: 13 :- within six months. A suit under Sec.6 of the Specific Relief Act, is often called a summary suit inasmuch as enquiry into the suit is confined to finding out possession and dispossession within six months from the date of institution of the suit, ignoring the question of title whatever it may be. 9. Coming to the case on hand, it is the case of the plaintiff that originally the building belonged to the 1[st] defendant under the hire purchase agreement with the GCDA and he was put in possession of the building under Ext.A2 agreement on 30/11/1980. As per the agreement, he has to pay `50/- per month to the GCDA. Subsequently, the 1[st] defendant agreed to sell the property to the plaintiff and towards the sale consideration of `75,000/-, the 1[st] defendant received `71,500/-, deducting advance amount of `3,500/-, and further, the plaintiff agreed to pay the balance in instalments to the GCDA. Further, the plaintiff contends that since the actual ownership was vested with the GCDA under the hire purchase agreement, **C.R.P. No. 114 of 2009** -: 14 :- transfer of property could not be effected though he was in actual physical possession of the property with family till shifting of his residence from the plaint schedule property in the year 1995 and thereafter he let out the building to other persons for rent and that his possession continued till 29/6/2007, the day on which the 2[nd] defendant dispossessed him. 10. Coming to the defendants' contentions, the 2[nd] defendant, who has allegedly dispossessed the plaintiff, is a person who came in the picture in March, 2007 only. Upto that, he was a stranger to the property transaction between the plaintiff and the 1[st] defendant. He has no case that though he purchased the property in the year 2007 only, he had direct knowledge or acquaintance with the earlier transaction between the plaintiff and the 1[st] defendant. Needless to say, he was incompetent to testify the details of the transaction took place before the transfer of property in his favour by the GCDA. On the other hand, the 1[st] defendant is the person who ## **C.R.P. No. 114 of 2009** -: 15 :- was liable to admit or deny the specific allegations and claims set up in the pleadings of the plaintiff. According to the plaintiff, he was put in possession of the property under Ext.A2 agreement dated 30/11/1980, he was continuing in that possession till 29/3/2007, the date of dispossession. In the written statement filed by the 1[st] defendant, she admitted that as offered by the plaintiff, he was put in possession of the property by him from 30/11/1980. But she further contended that the plaintiff vacated the property in 1995 and the plaintiff was not in permissive occupation of the plaint schedule property thereafter. Further, the 1[st] defendant claims that thereafter she was in occupation from 1995 to 12/3/2007 till the transfer of property in favour of the 2[nd] defendant. Is there any evidence to prove the 1[st] defendant's possession from 1995 to 12/3/2007? 11. As rightly observed by the court below in the written statement, there is no specific denial of the entire averments in the plaint in compliance with **C.R.P. No. 114 of 2009** -: 16 :- Order VIII Rule 3. In paragraph-7 of the written statement, the 1[st] defendant contended that she had not authorised the plaintiff to make payment of any instalment to the GCDA, but in paragraph-8, she turned round and admitted that occasionally the plaintiff has paid a part of the defaulted licence fee payable to her to the GCDA as per the express instructions given by her. Further, again 1[st] defendant admits that the few remittance made by the plaintiff to the GCDA was only as per the direction given by this defendant as an agent of the 1[st] defendant. 12. In view of this admission, let us examine the payments made by the plaintiff towards the GCDA and Cochin Corporation. Exts.A13 and A17 are the relevant documents evidencing such payments during the period from 1996 to 2007. Ext.A7 is the tax receipt dated 10/2/1997 showing the payment of `4,500/- to the GCDA by the plaintiff. Ext.A10 is the property tax pass book issued from the Cochin Corporation in respect of the plaint schedule building **C.R.P. No. 114 of 2009** -: 17 :- fort the period commencing from 1996. Ext.A11 is the property tax receipt dated 24/10/2005 issued by the Corporation of Cochin. Exts.A12 and A13 are the property tax receipts dated 11/10/2006 and 9/6/2007 issued by the Cochin Corporation to the plaintiff. Ext.A17 is the letter issued by the GCDA demanding `7,054/-. All these documents prove that the plaintiff had effected the payments to the GCDA and Cochin Corporation. There is no reason to doubt those payments in lieu of the admission of the 1[st] defendant in her written statement that a few payments were effected by the plaintiff to the GCDA and the Cochin Corporation under her instruction. Had the plaintiff vacated the building in the year 1995, what prompted the plaintiff to make such payments upto 2007? What prompted the 1[st] defendant to give instruction to the plaintiff to make such payments to the GCDA and the Cochin Corporation, after the licensor and licensee relationship ceased to exist. No doubt, in the absence of any explanation otherwise, it could reasonably be **C.R.P. No. 114 of 2009** -: 18 :- presumed that the plaintiff was continuing in possession of the plaint schedule property after 1995 and the plaintiff has not vacated the property in the year 1995 even though he shifted his residence. This payment further supported by Ext.A18 certified copy of the property tax receipt assessment list in respect of the plaint schedule building for the period from 1981 to 2007 and the endorsement evidencing receipt of `75,000/- allegedly made by the 1[st] defendant on the reverse side of Ext.A2 agreement. This evidence shows that the plaintiff was the occupier of the property upto 2007. It is pertinent to note that the 1[st] defendant has not adduced any evidence to establish that the signature and thumb impression seen beneath the endorsement are not that of her. 13. It is true that the 2[nd] defendant contended that all these documents were being kept in the plaint schedule building and the plaintiff trespassed into the plaint schedule building and taken away on 25/6/2007. Admittedly, the 1[st] defendant never occupied the **C.R.P. No. 114 of 2009** -: 19 :- building. So, even if those payments were effected by the plaintiff as an agent, there was no reason to keep these receipts in the plaint schedule building by the 1[st] defendant. 14. It is also contended that those documents were entrusted at the time of sale of the plaint schedule property and those documents were illegally taken away from the custody of the 2[nd] defendant. Let us examine the genuineness of these contentions also. Though the learned counsel for the revision petitioner vehemently contended that the 2[nd] defendant had complained before the police about the seizure of the documents from the plaint schedule building by the plaintiff on 25/6/2007. But, the complaint said to have been filed alleging the seizure of the documents by the plaintiff before the police was not forthcoming in evidence. Had it been produced before the court, the said complaint would have been the best evidence to establish the source of production of Exts.A7 to A17. No witness was **C.R.P. No. 114 of 2009** -: 20 :- examined to prove the alleged trespass and the seizure of the documents on 25/6/2007. 15. It is the further case of the 2[nd] defendant that by Ext.B9 agreement dated 20/6/2007, the plaint schedule building was rented out to one Das and he was in possession of the building on 20/6/2007 and also he was residing with family from 20/6/2007. The said Das has not filed a complaint regarding trespass or seizure of the documents by the plaintiff. Moreover, he would have been the best witness to give evidence as to trespass and seizure of the documents from the plaint schedule building. In this analysis, there is no doubt in my mind that the alleged trespass and seizure of the file containing documents produced by the plaintiff are nothing other than a false story put up by the 2[nd] defendant, and the complaint filed before the police on 26/6/2007 was an attempt to push out the plaintiff at the instance of police under Exts.B3 to B13. Exts.B3 to B134 are the documents covering a period from 12/3/2007 to **C.R.P. No. 114 of 2009** -: 21 :- 22/6/2007 only. Similarly, there is no evidence to prove 1[st] defendant's possession over the property from 1995 to 12/3/2007, on the other hand plaintiff's possession over the property during this period stand proved by Exts.A13 to A17. 16. Even if Exts.B3 to B13 are taken at its face value, these documents may be true. But these documents evidencing transaction from 12/3/2007 to 22/6/2007 between the 1[st] and 2[nd] defendants and also between the 2[nd] defendant and the Cochin Corporation and the GCDA cannot be interpreted to mean that the 2[nd] defendant was in actual physical possession of the plaint schedule property from 13/3/2007, the date of transfer of proceedings of the GCDA in favour of the 2[nd] defendant. The 2[nd] defendant would have effected payments to Cochin Corporation under Ext.B4 transfer proceedings of GCDA while the plaintiff was continuing possession of the plaint schedule property, without his knowledge. 17. It is pertinent to note that though the plaintiff **C.R.P. No. 114 of 2009** -: 22 :- has specifically contended that pursuant to Ext.A2 agreement the 1[st] defendant agreed to sell the plaint schedule property to the plaintiff for a consideration of `75,000/-, she received `71,500/- and adjusted the advance amount of `3,500/- towards the balance from the plaintiff and made endorsement in Ext.A2 agreement, the 1[st] defendant has simply denied it in the written statement and kept silence without discharging the burden of proof. The 1[st] defendant would have, at least, entered into the witness box to deny the receipt of the said amount, when Ext.A2 agreement containing the endorsement evidencing receipt of `75,000/- was marked and taken in evidence. As rightly observed by the court below, she kept away from the court and the plaintiff was deprived of an opportunity to cross-examine her regarding the endorsement and signature in Ext,.A2 agreement. Moreover, in Ext.A2 beneath the endorsement evidencing the receipt of `75,000/-, there is a thumb impression of the 1[st] defendant in **C.R.P. No. 114 of 2009** -: 23 :- addition to her signature. In that circumstance, the 1[st] defendant could have resorted to expert opinion to disprove the thumb impression. In short, the 1[st] defendant's vague denial in her written statement, contrary to her certain admissions in the later part of the written statement, coupled with her reluctance to adduce any kind of oral evidence, speaks volumes and an adverse inference can be drawn against her entire plea. 18. Admittedly, the 1[st] defendant got right and possession by hire purchase agreement with the GCDA. Since it was an hire purchase agreement, property could not be transferred till the payment of last instalment by the plaintiff as agreed between the plaintiff and the 1[st] defendant. But, after the payment of entire balance amount to GCDA, by Exts.A8 and A9, there was no legal impediment in transferring the property to the 2[nd] defendant in violation of the agreement between the plaintiff and the 1[st] defendant. It could reasonably be presumed that, taking undue **C.R.P. No. 114 of 2009** -: 24 :- advantage of this situation, Ext.B4 sale could have effected in violation of the agreement with the plaintiff. 19. In view of Exts.A1 to A18, it cannot be presumed that, the 2[nd] defendant took physical possession of the property pursuant to Ext.B4 transfer proceedings. I also agree with the findings of the court below that the plaintiff took possession of the property pursuant to Ext.A2 agreement and continued in possession till the alleged dispossession, notwithstanding the transaction under Exts.B3 to B12. Exts.B3 to B12 are incapable to dispel the said finding in view of Exts.A1 to A13 and the evidence rendered by P.Ws.1 to 3. 20. Coming to the alleged dispossession, it is the specific case of the plaintiff that he was dispossessed by the 2[nd] defendant on 29/6/2007. He has given oral evidence to that effect, and nothing brought out in cross-examination to discard his evidence. Further, it is supported by the evidence of ## **C.R.P. No. 114 of 2009** -: 25 :- P.W.3. The evidence of P.W.2 gives assurance as to possession of the plaintiff over the building after 1995 and the dispossession at the hands of the 2[nd] defendant as alleged by the plaintiff. The evidence of P.W.2 is further supported by the evidence of P.W.3 who was a leasee under the plaintiff. Admittedly, the 2[nd] defendant came into the picture on 12/3/2007 only and the suit was filed on 2/7/2007. At any rate, dispossession both legal or physical can be within six months. 21. In the case of legal dispossession, the process must have been ended within six months before the suit. In the absence of any kind of valid evidence, either oral or documentary, from the 1[st] defendant, who appears to be the kingpin of the matter in dispute, it could reasonably be presumed that Exts.B3 to B14 are the documents clandestinely made in collusion between the 1[st] and 2[nd] defendants, with a view to illegally dispossess the plaintiff from the plaint schedule property. ## **C.R.P. No. 114 of 2009** -: 26 :- 22. The legal dispossession can be effected silently and clandestinely in secretiveness. There arises a question whether such legal dispossession made clandestinely and secretively by procurement of documents in fraudulence or in an unlawful way would come within the sweep of 'dispossession' employed under Sec.6 of the Specific Relief Act? Put it differently, whether physical dispossession alone would come under Sec.6 of the Specific Relief Act? The learned counsel for the revision petitioner also highlighted that point and contended that the plaintiff has failed to prove physical dispossession as contemplated under Sec.6 of the Special Relief Act. I am unable to accept the said contention that actual physical dispossession alone would come under Sec.6 of the Special Relief Act, in view of the aim and object of Sec.6 of the Specific Relief Act. No man would be allowed to take law in his own hand, otherwise than in due course of law. This principle can be applied against dispossession by any kind of illegal means. **C.R.P. No. 114 of 2009** -: 27 :- Procurement of documents illegally and clandestinely in secretiveness and as a result of collusion, without the knowledge of the person to whom the matter should have been informed, with a view to dispossess that person who is in legal possession of the property amounts to unlawful dispossession within the sweep of 'dispossession' under Sec.6 of the Specific Relief Act. Any kind of dispossession without consent, otherwise than in due course of law would come under dispossession envisaged under Sec.6. A person who is in legal possession may not always be in physical possession as in the case of lease of a building by the landlord to the tenant. But the landlord who is in legal possession cannot be deprived of remedies available under Sec.6 of the Specific Relief Act. The word 'dispossessed' employed under Sec.6 cannot be construed narrowly in a restricted sense encompassing of actual physical dispossession only of the immovable property. The word 'dispossession' includes within its sweep all forms of unlawful ## **C.R.P. No. 114 of 2009** -: 28 :- dispossession made in fraudulence. 23. The analysis is supported by the decision in Sadashiv Shyama Sawant v. Anita Anant Sawant [(2010) 3 SCC 385]. There, the Apex Court held as follows: “21. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word “dispossessed” in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the **C.R.P. No. 114 of 2009** -: 29 :- expression “any person claiming through him” would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant.” 24. In the light of the above analysis, I find that there is no illegality or impropriety in any of the findings whereby the court below decreed the suit. I do not find any kind of perversity in the appreciation of evidence on record. Consequently, this revision petition deserves to be dismissed and I do so. The revision petitioner is given one month's time to vacate the plaint schedule property. The parties shall suffer their respective costs. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge