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1986 DIGILAW 343 (KER)

ANIES v. RAPAI

1986-09-26

BALAKRISHNAN

body1986
Judgment :- 1. Plaintiff in O. S. No. 394 of 1978 on the Me of the Additional Munsiff's Court, Irinjalakuda is the revision-petitioner. She filed a suit for recovery of possession under S.6 of the Specific Relief Act. 2. Plaint 'A' schedule property was purchased by the plaintiff from one Poulose. 'B' schedule property is a puramboke land on the western side of 'A' schedule property and on further west of 'B' schedule property is the national high way. The plaintiff and her predecessor-in-interest had access to the national high way only through plaint'B' schedule property. The plaintiff bad planted coconut saplings, plantains and other vegetables in 'B' schedule property as she was keeping this property in her possession. It is further alleged by the plaintiff that on 29-6-1978 the respondents along with some others trespassed into this area and erected a small shed in 'B' schedule property. They also installed a board "Maija Arts Club". Therefore the plaintiff filed the suit for recovery of possession under S.6 of the Specific Relief Act. 3. The court below found that the plaintiff was not in actual possession of this property and therefore the prayer for recovery of possession was disallowed. However the court granted injunction in favour of the plaintiff-petitioner and the respondents were restrained from causing hindrance to the plaintiff from using 'B' schedule property as a pathway as an access to the national highway from 'A' schedule property. The counsel for the revision-petitioner submitted that the court below ought to have granted recovery of possession. 4. Six witnesses were examined on the side of the revision-petitioner and one witness was examined on the defence side. Ext. Cl and C2 commission report and plan were also marked in these proceedings. On a careful scrutiny of the evidence it is difficult to hold that the plaintiff had established possession over the plaint 'B' schedule property. Plaint 'B' schedule property is admittedly a puramboke land. Plaintiff purchased 'A' schedule property only in 1978. In the very same year plaintiff filed the suit. Ext. Al sale deed does not take in the plaint schedule property. No mention is made regarding the possession of 'B' schedule property. The revision-petitioner would contend that she had planted some coconut saplings and plantains in the property and this evidences her possession. In the very same year plaintiff filed the suit. Ext. Al sale deed does not take in the plaint schedule property. No mention is made regarding the possession of 'B' schedule property. The revision-petitioner would contend that she had planted some coconut saplings and plantains in the property and this evidences her possession. The respondents would contend that they had erected the shed in 1974 and they were using this property for conducting a club. From the evidence of the various witnesses it can only be assumed that there was some scramble for possession of this puramboke land. 5. The only question for determination in a suit under S.6 of the Specific Relief Act is whether the plaintiff was in possession within six months prior to the date of suit and whether the plaintiff has been dispossessed within that period. If the court finds that the plaintiff was not in possession of the suit property within six months prior to the date of suit, the plaintiff will fail, and if the court finds that the plaintiff was in possession and the defendant has dispossessed him within that period, the plaintiff will succeed. Acquisition of legal possession normally involves on the occurrence of some event whereby the subject-matter falls under the control of the possessor. There must be intention on the part of the possessor to exercise control over the subject-matter and to exclude others from it. Possession is not necessarily the same thing as occupation or actual user. Possession means the physical possibility of a person dealing with property as he likes, and it also implies some actual power over the object possessed and some amount of will to avail oneself of that power. A person who plants certain seasonal cultivation in Government land without being noticed by the agents of the State cannot be construed as a person in possession of that land. Mere occupation of a piece of land with the expectation that the same would be assigned to him at a later stage also cannot be taken as possession of Government land in the eye of law. If any hindrance was caused to such occupation of land by some others, he may not be entitled to seek the aid of S.6 of the Specific Relief Act. 6. If any hindrance was caused to such occupation of land by some others, he may not be entitled to seek the aid of S.6 of the Specific Relief Act. 6. The learned counsel for the revision petitioner also submitted that the court below has granted injunction in favour of the plaintiff and that was on the basis that the plaintiff was in possession of the property and therefore the prayer for recovery of possession also should have been allowed by the court. I am not inclined to accept this plea. The prayer for injunction was allowed on the ground that 'B' schedule property can be used as an access to the national highway from 'A' schedule property. The respondents were restrained from causing obstruction to the alleged pathway of the petitioners. Anyway the petitioner has not established that she is entitled to get possession of plaint 'B' schedule property under S.6 of the Specific Relief Act. The court below has rightly dismissed the suit. The civil revision petition is without any merit and the same is dismissed. The parties to bear their costs. Dismissed.