A suit for possession on the basis of prior possession alone is maintainable against all except the true owners.

1. This Civil Miscellaneous Appeal is filed by the first defendant against an

order of remand passed by the first appellate court. The plaintiff claimed to be

in possession of the plaint schedule property as a lessee from one Viswanathan

the husband of the first defendant and father of the second defendant. According

to the plaintiff defendants 1 and 2 along with others trespassed into the

property in his possession on 3 51970 and committed waste by cutting down trees.

According to him he is entitled to be in possession and the defendants have no

right to interfere with his possession On these allegations on the basis of his

title as a lessee he sued the defendants to recover possession. Defendants 1,2

and 4 contested the suit. According to defendants 1 and 2 the property belonged

to the above mentioned Viswanathan and on his death defendants 1 and 2 came into

possession and while so entered into an arrangement for sale of the property to

the fourth defendant and on receiving a major part of the consideration allowed

him to enter the property.

They denied that the plaintiff was ever a lessee of the property and that he was

put in possession as alleged by him. After the evidence was let in by both sides

when the case was being heard the plaintiff found that the civil court has no

jurisdiction to adjudicate upon the question whether he is a tenant and that in

view of S.125 of the Kerala Land Reforms Act. Therefore he gave up his case based

on title and wanted the relief which he asked for on the basis of his prior

possession alone. The trial court found that the plaintiff was in possession of

the property and the defendants trespassed into the property and reduced it to

their possession. But the suit was dismissed on the ground that the suit is not

based on S.6 of the Specific Relief Act and the plaintiff has asked for relief on

the basis of his title which he gave up at the last moment. On appeal, in the

lower appellate court the plaintiff made the position clear even in the appeal

memorandum that his suit was not under S.6 of the Specific Relief Act and the

trial court went wrong in dismissing the suit after having found that he was in

possession as alleged by him in the plaint. According to him he was entitled to

recover possession of the property on the basis of prior possession alone. The

lower appellate court also found that the suit is not under S.6 of the Specific

Relief Act, but was of the view that the trial court was wrong in dismissing the

suit. According to the lower appellate court the suit can essentially be

understood to be a suit for recovery of possession on the basis of prior

possession and the plaintiff having come to court within 12 years of his alleged

dispossession the dismissal of the suit by the trial court was not correct. Since

the approach made by the trial court for disposing of the suit appeared to be not

correct the case was remanded to the trial court for fresh consideration and

disposal. It is this order of remand that is now challenged in appeal.

2. Counsel for the appellant contended that the lower appellate court has gone

wrong in overlooking the fact that the suit is filed by the plaintiff against

defendants 1 and 2 who are the owners of the property and a suit for possession

on the ground of prior possession alone cannot be sustained against the true

owners. The learned counsel further contended that if the suit is one under S.6

of the Specific Relief Act an appeal to the lower court and the order of remand

by that court are unsustainable in view of the prohibition contained in S.6 of

the Specific Relief Act, namely that no appeal will lie against a decision under

S.6 of the Specific Relief Act. The respondents' counsel did not try to sustain

the suit as one under S.6 of the Specific Relief Act and that rightly because

otherwise the appeal to the lower appellate court could not be sustained. The

respondents' counsel contended that the suit is essentially a suit for possession

on th