Sudhodanan P.K. and Others v. Priya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944** ## **RSA NO. 338 OF 2016** **AGAINST THE JUDGMENT AND DECREE DATED 19.01.2016 IN AS 306/2013 OF ADDITIONAL DISTRICT COURT- V, KOTTAYAM CONFIRMING THE JUDGMENT AND DECREE DATED 30.09.2013 IN OS 58/2012 OF MUNSIFF COURT, CHANGANACHERRY** ## **APPELLANT/APPELLANT/DEFENDANT:** - 1 SUDHODANAN P.K., AGED 77 YEARS S/O.KOCHUKUNJU, POIKAYIL HOUSE, NEDUMKUNNAM VILLAGE, NEDUMKUNNAM KARA, CHANGANACHERRY TALUK. (DIED) - 2 RADHAMONI K.N., AGED 1 YEARS W/O SUDHODANAN,POIKAYIL HOUSE, NEDUMKUNNAM VILLAGE, NEDUMKUNNAM KARA, NEDUMKUNNAM P.O., CHANGANACHERRY TALUK, KOTTAYAM - 3 MANOJ KUMAR P.S., AGED 1 YEARS S/O SUDHODANAN,POIKAYIL HOUSE, NEDUMKUNNAM VILLAGE, NEDUMKUNNAM KARA, NEDUMKUNNAM P.O., CHANGANACHERRY TALUK, KOTTAYAM - 4 SUJAIMON P.S., AGED 1 YEARS S/O SUDHODANAN,POIKAYIL HOUSE, NEDUMKUNNAM VILLAGE, NEDUMKUNNAM KARA, NEDUMKUNNAM P.O., CHANGANACHERRY TALUK, KOTTAYAM - 5 JYOTHISHMON P.S., AGED 1 YEARS S/O SUDHODANAN,POIKAYIL HOUSE, NEDUMKUNNAM VILLAGE, NEDUMKUNNAM KARA, NEDUMKUNNAM P.O., CHANGANACHERRY TALUK, KOTTAYAM (ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 27.10.2020 IN IA.1/2020.) BY ADVS. LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS RAJEEV JYOTHISH GEORGE R.S.A.No. 338 of 2016 2 ## **RESPONDENT/RESPONDENT/PLAINTIFF:** PRIYA, AGED 35 YEARS, W/O.HARICHANDRAN, GEETHA BHAVAN, NEDUMKUNNAM P.O.,NEDUMKUNNAM VILLAGE, NEDUMKUNNAM KARA, CHANGANACHERRY TALUK-686 001. BY ADVS. C.VATHSALAN K.RAKESH ROSHAN THUSHARA.V THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A.No. 338 of 2016 3 ## **JUDGMENT** ## **Dated this the 15[th] day of February, 2023.** Appellant is the defendant in O.S.No. 58/2012 on the file of Munsiff's court, Changanassery which has been filed under Section 6 of the Specific Relief Act seeking for possession by evicting defendant from the plaint schedule property. 2. An extent of 70 Sq.meters of property along with building was purchased by the respondent/plaintiff as per sale deed No.5/2012 of S.R.O, Karukachal from one Biju Paul. He purchased the same from the defendant and his sister by virtue of sale deed No. 1940/2011 of the same S.R.O. Immediately after the execution of the sale deed in favour of the plaintiff, she took possession of the building and property is situated within well defined boundaries. She made preparation to renovate the building and raw materials also collected for the same. On 31.01.2012, at mid night, defendant and his henchmen trespassed into the property and break opened the lock and took forceful possession of the building. Immediately, she filed complaint before the police, but with no results. Hence, R.S.A.No. 338 of 2016 4 the suit. 3. Defendant filed written statement denying the cause of action alleged by the plaintiff. Plaint schedule property and the building is in the exclusive possession of the defendant and he is conducting Ayuvedic Dispensary with due licence in that building. Defendant and his sister have executed sale deed with respect to the plaint schedule property in favour of one Biju Paul but by that document possession was not transfered to Biju Paul. The document has been executed only as a security for the repayment of loan availed by the defendant's son from Biju Paul. After the execution of that deed, when Biju Paul made attempt to obstruct the defendant’s possession and to take forceful possession of the building, defendant filed O.S.No.44/2012 against Biju Paul and that suit is pending. 4. PWs 1 and 2 examined and Exts.A1 to A6 were marked form the side of the plaintiff. DWs 1 to 3 examined and Exts.B1 to B5 marked from the side of defendant. Cw1 was examined and Ext.C1 and C2 also marked . 5. The Trial court on evaluating the facts, circumstances and evidence adduced found that the plaintiff failed to prove the R.S.A.No. 338 of 2016 5 alleged trespass by the defendant but it is further found that plaintiff is claiming title over the plaint schedule property and proceeded to consider the matter under Section 5 of the Specific Relief Act, 1963 instead under Section 6 of the Act. Ultimately, it is found that plaintiff succeeded to prove her title. It is also found that Biju Paul as per Ext.B1 agreement agreed to reconvey the property on payment of dues of Rs. 5 Lakhs with interest. Hence it was found that defendant failed to make a prayer for specific performance either as a suit or counter claim on expiry of the period stipulated in Ext.B1. Ext.A1 sale deed became absolute and plaintiff is entitled to title and possession of the plaint schedule property and accordingly, the suit was partly decreed. The claim for damages for unauthorized occupancy from the defendant is denied since there is no evidence to prove that the defendant has to pay any rent for the occupation and the suit decreed partly directing the defendant to vacate the building within 30 days. 6. Against which, appeal was filed and the 1[st] appellate court on re-appreciating facts, circumstances and evidence found that there is no reason to interfere with the judgment and decree passed by the Trial court and thereby, dismissed the appeal. Having lost R.S.A.No. 338 of 2016 6 before the two forums, appellant approaches this Court in this second appeal. Appeal has been admitted on the substantial question of law formulated in the appeal memorandum which reads thus: “1. Whether a court has got jurisdiction to grant a relief on the basis of the title of the plaintiff in a suit under Section 6 of the Specific Relief Act ? 2. Whether the courts below erred in proceeding with the case to grant relief on the basis of the title of the plaintiff after entering the finding that the plaintiff was never in possession of the property and hence never dispossessed from the suit property ? 3. Whether the courts below erred in granting a relief in favour of the plaintiff even after finding that the plaintiff could not prove her case and the allegations in the plaint are not correct ? 4. Whether the courts below erred in not finding that in the light of the denial of the title of the plaintiff by the defendant the plaintiff ought to have filed a suit for declaration by virtue of Section 34 of the Specific Relief Act ? 5. Whether the courts below erred in entering a finding that the plaintiff has got title on the basis of the recitals in the title deed of the plaintiff when the case of the defendant is that the said title deed as well as the title deed of the predecessor-in-interest of the plaintiff is a sham transaction ?” 7. LCR was called for and both sides were heard. ## 8. The main contention of the learned counsel for the appellant is that suit was filed under Section 6 of the Specific Relief R.S.A.No. 338 of 2016 7 Act and the Trial court as well as 1[st] appellate court concurrently found that plaintiff failed to prove that defendant trespassed into the plaint schedule building as alleged . Since suit is under Section 6 of the Specific Relief Act and plaintiff could not prove her possession prior to 31.01.2012 and the alleged dispossession by the defendant, suit will not lie under Section 6 of the Specific Relief Act. It is contended that, if in a suit under Section 6 of the Specific Relief Act, plaintiff failed to prove the forceful dispossession , the only remedy , as per Sub Section (3) of section 6 of the Specific Relief Act (In short 'the Act') to the aggrieved party is to file revision since no appeal will lie as per Section 6(3). But in this case, the defendant filed an appeal instead of revision. It is contended that the judgment of the Trial court merged with the decree passed by the 1[st] appellate court and hence, 2[nd] appeal filed before this Court is quite maintainable. 9. In this context, the learned counsel relies on _**Abdul Rahiman v. Nalakath Muhammed Haji**_ [1996 KHC 285 : 1996 (2) KLT 185], wherein it has been held that in order to file a suit under Section 6 of the Act, question of title of the property is immaterial and plaintiff must prove his previous possession and dispossession R.S.A.No. 338 of 2016 8 by the defendants otherwise than by due course of law within 6 months of suit. It is also held that under Section 6(3) any order or decree passed in any suit instituted under this Section is not appealable and also cannot be reviewed and only revision would lie. 10. _**Rosily v. Annam**_ [2003 KHC 1113 : 2003 (3) KLT 282], was further relied on, wherein the learned Single Judge reiterated the position that in a suit under Section 6 of the Act, the question of title is wholly irrelevant since such suits are tried summarily and the relief which the courts are competent to grant under the said suit is one for recovery alone and not any other relief to grant in which question of title will crop up even incidentally. 11. In _**Adapa Tatarao v. Chamantula Mahalakshmi**_ [2007 KHC 6899 : AIR 2007 AP 44], the learned Single Judge of Andra Pradesh High Court held that in a suit under Section 6 of the Act, the occasion for the trial court to address itself to the question of title or other entitlement of the plaintiff does not arise. The only question assumes significance in such suit is, as to whether the plaintiff was dispossessed from the suit schedule property, otherwise than through the procedure prescribed by law, and whether the suit was filed within six months from the date of such R.S.A.No. 338 of 2016 9 dispossession. 12. Again in _**Ponnappan v. Parukutty and Others**_ [2015 (2) KHC 617 : ILR 2015 (2) Ker. 296], it has been held that in a suit under Section 6 of the Act, the question of possession of plaintiff within a period of 6 months prior to the suit alone should be considered and no relief other than one for putting the plaintiff in possession of the property can be claimed in such a suit. It is also held that claiming recovery of possession and decree of mandatory injunction and grant of this relief by the trial court is illegal. 13. The question involved in this case is much more complicated because inspite of the fact that the suit was filed under Section 6 of the Act, decree for eviction on the strength of title was granted in the suit. Appellant/defendant filed regular appeal before the District court and that was considered on merit deciding against the appellant/defendant and against which, the present appeal has been filed. So actually the defendant approached a wrong forum while filing the appeal against a judgment and decree passed under Section 6 of the Act. The defendant ought to have filed a revision against the said judgment. What would be the consequence if the defendant filed an appeal against the judgment R.S.A.No. 338 of 2016 10 passed under Section 6 of the Act inspite of filing a revision and again obtained a decree against him is yet another question to be considered in this appeal. 14. The learned counsel for the respondent/plaintiff in this context bring to my attention _**Sanjay Kumar Pandey and Others v. Gulabahar Sheikh and Others**_ [(2004) 4 SCC 664], wherein it has been held that proceedings under Section 6 of the Act are summary in nature, limited to finding out question of possession within the period of 6 months of institution of suit, ignoring question of title. It is also held that remedy of a person unsuccessful in a suit under Section 6 is to file a regular suit based on title and the remedy of revision is available only by way of exception, on a case for interference being made out within the well-settled parameters under Section 115 of the Code of Civil Procedure, 1908. 15. It is contended that 2[nd] appeal filed by the appellant/defendant itself is not maintainable and the only remedy available to him against a judgment under Section 6 of the Act is to file a revision and hence, the 2[nd] appeal has to be dismissed on that ground itself. But the learned counsel for the appellant in this context would contend that once appeal has been filed against the R.S.A.No. 338 of 2016 11 judgment and decree of the Trial court ,upon decision of the appellate court, there is merger of the judgment of the trial court with the decision rendered by the appellate court , and hence, the only remedy now available to the defendant/appellant is to challenge the same in this 2[nd] appeal. 16. The learned counsel for the appellant placed reliance on _**Philip Ancheril C. and Others v. Chacko Kunhappan and Others**_ [2012 (1) KHC 670] wherein it has been held that when a decree is appealed from, and the superior court either affirms or modifies or reverses the decree passed by the lower court, it results in a merger of the Lower courts' decree with that of the Superior Court and the decree which would thereafter be executable would be the decree of the superior court. 17. In _**Chandi Prasad v. Jagadish Prasad**_ [2004 KHC 1184 : 2004 (3) KLT 654 (SC)], it has been held that merger of any decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the Trial Court. In Paragraph 25 of that judgment, in Kunhayammed and Ors. v. State of Kerala and Another [2000 (3) KLT 354 (SC)], has been quoted wherein it has been observed by the Apex Court that once a R.S.A.No. 338 of 2016 12 Superier Court has disposed of the lis before it, it is a decree or order of the Superior Court, Tribunal or Authority which is final, binding and operative decree or order . 18. But, in the present case, though the suit was filed under Section 6 of the Act, the Munsiff's court taken it as a suit under Section 5 of the Act and disposed the matter as a suit based on title. Against which the defendant/appellant inspite of resorting to file a revision, filed a regular appeal and the impugned judgment was passed. The question of merger would occur only against the judgment and decree which a court having powers to entertain the appeal passes the decree. When a court having no powers to entertain appeal, entertains the appeal and passes a decree no question of merger arises so as to entertain the second appeal. 19. However as per the settled position of law above discussed the trial court has no jurisdiction to entertain the question of title in a suit filed under section 6 of the Act. Hence the decree of eviction passed under section 5 of the Act by the trial court as confirmed by the first appellate court is wholly illegal and unsustainable. The only remedy open to the defendant in such R.S.A.No. 338 of 2016 13 situation under section 6(3) is to file a revision.When the trial court exercised powers not vested with it under law in considering the suit under section 5 and granted decree in a suit filed under section 6, it is perverse and is liable to be set aside. Needless to say that when no appeal lies against such decree, the judgment in appeal is also without jurisdiction. So, naturally no second appeal would also lie against such judgment and decree as discussed earlier. Since the courts below acted illegally by granting a decree on title in a suit filed under Section 6 of the Act it is arbitrary, without jurisdiction, and is perverse. Hence this court by exercising the supervisory powers vested with this court under Article 227 of the Constitution of India set aside the judgements and decree erroneously passed by the courts below. In the result appeal allowed, judgment and decree passed by the trial court as affirmed by the first appellate court is set aside. Parties shall bear their respective cost. Sd/- rps/ **M.R.ANITHA, JUDGE**