Joy @ Augustine S/o Thekkan Mathai v. Varghese S/o Mechery Kunji Pailan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934** ## **RSA.No. 938 of 2012 ()** **---------------------------------AGAINST THE ORDER/JUDGMENT IN AS.21/2009 of PRL.SUB COURT,IRINJALAKUDA DATED 19-03-2012** **AGAINST THE ORDER/JUDGMENT IN OS.555/2006 of MUNSIFF COURT, CHALAKUDY DATED 08-01-2009** ## **APPELLANT(S)/APPELLANT/PLAINTIFF.:** **------------------------------------------------------------------** ## **JOY @ AUGUSTINE S/O.THEKKAN MATHAI, K CHOWKA DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENT(S)/RESPONDENTS/DEFENDAMTS:** **--------------------------------------------------------------------------** **1. VARGHESE, S/O.MECHERY KUNJIPAILAN, PLAPILLY DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK THRISSUR DISTRICT- PIN - 686503** **2. JACOB S/O.MECHERY VARGHESE** **......DO................DO......** **3. AVARACHAN, S/O.MECHERY VARGHESE,** **......DO................DO......** **R1-R3 BY ADV. SRI.C.A.CHACKO** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** das ## N.K.BALAKRISHNAN, J. ===================== R.S.A. No. 938 of 2012 =========================== Dated this the 19[th] Day of March, 2013 ## JUDGMENT The plaintiff is the appellant. The suit was for injunction to restrain the defendants from trespassing into the plaint schedule property admeasuring 90 cents obtained by him from the Manager of the Bank as per Ext. A1 sale deed. The plaint schedule property and other properties belonged to the first defendant. The property comprised in Sy No. 255/2 was mortgaged by him to the bank and obtained loan. Since he defaulted to pay the amount, the plaint schedule property was put up for sale. The plaintiff purchased the property in the public auction conducted by the bank. Sale Certificate was issued and mahazar was also prepared. Pursuant there to, Ext.A1 sale deed was executed in favour of the plaintiff. The plaintiff contended that the defendants are trespassing into that property. The R.S.A. No. 938 of 2012 -:2:- defendants on the other hand contended that the plaintiff obtained right only over the property comprised in Sy. No.255/2 and that, the attempt of the plaintiff is to get at the remaining property in the possession of the defendants which is comprised in Sy. No. 256/1 and 255/1 etc. It was also contended that the property which was mortgaged and the remaining property were lying contiguously. It was further contended that the property comprised in Sy.No. 256/1 was mortgaged by the defendants in favour of another bank and loan was obtained and that the plaintiff had not obtained any right over the property comprised in Sy.No. 255/1. Commission was issued. He inspected and measured the property and submitted the report and plan. A counter claim was also made by the defendant seeking fixation of boundary along the eastern boundary of the property shown in the counter claim which separates his property from Sy.No.255/2 lying on the east. R.S.A. No. 938 of 2012 -:3:- 2. After analysing the entire evidence, the trial Court found that the plaintiff has failed to prove that he has got any right over the property comprised in Sy.No. 256/1. Hence, the suit was dismissed. The trial court found that defendant No.2 is entitled to succeed in the counter claim to have the boundary fixed along the eastern boundary of his property comprised in Sy.No.256/1 to separate his property from that of the plaintiff . Hence the counter claim was decreed to that extent. The appeal filed by the plaintiff met with the same fate. Though a cross-appeal was also filed by the defendants, that also was dismissed. 3. The learned counsel for the appellants argues vehemently that the courts below have not considered the issue in the correct perspective. Since the plaintiff obtained title to a property measuring 90 cents as per Exts.A1 and A2, the courts below were not justified in declining injunction in respect of the balance extent of the property on the ground that balance extent is situated in R.S.A. No. 938 of 2012 -:4:- Sy.No. 256/1. 4. Ext. C2 (a) is the plan submitted by the Advocate Commissioner. The plots F, G & J are reported to be the plots covered by Ext.A1 sale deed obtained by the plaintiff though the total extent of that property is less than 90 cents. The total extent of the land covered by F, G and J would come to only 61.3 cents. Plots E & A shown in Ext. C2 are situated in Sy. No. 255/2. 5. It is vehemently argued by the learned counsel for the plaintiff that if the decree of injunction is restricted to the plots F G & J then the total extent in the possession of the defendant would come to 92.77 cents, whereas even as per the title deed defendant was entitled to have only 75 cents . It is important to note that it was only the property that was mortgaged which was put up for sale in the public auction and, therefore, the property that was mortgaged by the plaintiff alone would pass on to the auction purchaser and not anything more. It may be true that the extent of the R.S.A. No. 938 of 2012 -:5:- property shown in the mortgage deed was 90 cents. But going by the description, survey number and other aspects, it was found that the total extent of the property that was obtained by the auction purchaser (the plaintiff) would take in only plots F, G and J, the total extent of which would come to only 61.32 cents. The lie and position of plots A & E would clearly show that it could never form part of the property mortgaged or which was purchased in public auction. The attempt made by the plaintiff is to get at the property shown as plot H lying to the west of the property marked as 'J'. Plot 'J' is comprised in Sy. No. 255/2. Plot H is situated Sy. No. 256/1. It is in respect of that property the defendant has produced title deed. There is evidence to show that the plot H and the remaining property held by D2 was mortgaged by him in favour of another Bank in respect of which documents were produced by that mortgagee bank. It is only the property of D1 that was sold in auction which was purchased by the plaintiff. R.S.A. No. 938 of 2012 -:6:- 6. Simply because in the sale certificate the extent of the property was shown as 90 cents, the plaintiff cannot contend that he is entitled to get the balance extent from the western plot H which lies in a totally different survey number. The fact that originally the properties comprised in Sy.Nos.256/1 and 238/4 were lying contiguously with the property in Sy.No.255/2 is no reason to say that the auction purchaser can stretch his hands beyond the property mortgaged or obtained in auction. Sy. No. 238/4 is situated still to the east of the plot property comprised in Sy.No. 255/2. 7. There is no case for the plaintiff that the mortgagor/defendant (D1) had produced any plan showing the lie and position of 90 cents of land stated to have been mortgaged so as to contend that the entire property shown in that plan should be taken to have been sold in public auction. The defendants had produced a certificate issued from the Village Office to support the case of the defendants R.S.A. No. 938 of 2012 -:7:- that the property comprised in Sy. No. 256/1 was the property mortgaged by the defendants in favour of Maloor Co-operation Bank. It was stated by the defendants that in respect of the property comprised in Sy.No. 256/1 measuring 75 cents, D2 had obtained title as per registered sale deed No. 1556/1985 and that sale deed was produced before Maloor Service Co-operative Bank. 8. It is in evidence that since the defendant No. 2 failed to pay the loan amount, the Service Co-operative Bank initiated Arbitration Proceedings and an award was passed. The Execution Petition was pending for realization of the amount covered by that loan. For obtaining loan the property comprised in Sy. No. 256/1 measuring 75 cents was mortgaged by 2nd defendant. Those aspects also cannot be lost sight of. The contention that not only plot F, G and J, the plaintiff is also entitled to get the property which falls in Sy. No. 256/1, cannot be sustained. The lie and postilion of plot A & E, as has been stated above is such R.S.A. No. 938 of 2012 -:8:- that it cannot form part of the property which was mortgaged. 9. Plaintiff obtained right over the property only as per Ext. A1 the assignment deed dated 27-6-2006 executed by the Bank Manager in favour of the plaintiff. Ext.A2 is the sale certificate issued in favour of the Bank in the Execution proceedings, E.P. 82/2001 and Ext.A3 is the delivery receipt issued by the Amin. Ext.A9 is the location sketch produced by the plaintiff to contend that the property shown therein was the one obtained by the vendor of Ext.A1. Just a glance at Ext.A9 would make it clear that the property obtained by the plaintiff or his predecessor-the Bank Manager has on its north a pathway and the 'pandaram vaka' property. It is true that the Survey Number of the property is 255/2. But it was stated by the Village Officer who issued Ext.A9 that the property was not measured with reference to the document but it was only a location sketch. Therefore, the plaintiff cannot contend that the property R.S.A. No. 938 of 2012 -:9:- assigned to him by the Bank Manager includes plots A & E which are also comprised in Sy.No. 255/2. That apart, the four boundaries mentioned in the plaint will also make it clear that those four boundaries do not take in plots A & E. The lie and position of plot A & E shown in Ext.C2 (a) itself will make it clear that it was far beyond the plot J the yellow coloured plot shown in Ext. C2 (a). If as a matter of fact plots A & E also formed part of the property which was given delivery to the vendor of Ext.A1 then certainly the boundaries of those properties which are totally different would have been separately mentioned. When the properties were measured by the Advocate Commissioner the case advanced by the plaintiff was that the property that was given delivery to his predecessor includes plot H which is admittedly comprised in Sy. No.256/1. The 2nd defendant is not a party to the earlier suit nor to the execution proceedings and as such the 2nd defendant is not bound by the delivery or any other transaction entered into R.S.A. No. 938 of 2012 -:10:- or any other proceedings pursuant to the decree passed against the first defendant. That apart, the second defendant had produced his title deed in respect of the property comprised in 256/1. That is a document of 1985. The property covered by the sale deed of 1985 was measured by the Advocate Commissioner and that fact has been specifically mentioned in the report that it is plot H which is lying to the west of plot J, situated in Sy. No. 256/1 and that it is in the possession of the 2nd defendant. The extent of the same was shown as 75 cents. Since the first defendant alone was the mortgagor and since his right over the property alone could have been put up for sale in the execution of the decree, the contention that plot H should form part of the property obtained delivery by the Bank Manager and so by virtue of Ext.A1 the plaintiff has obtained right over plot H is found to be totally denuded of any merit. The whole argument advanced by the learned counsel for appellant proceeds on the premise that once R.S.A. No. 938 of 2012 -:11:- sale certificate is issued by the Court the title in respect of the entire property shown therein would pass on to the purchaser obviously oblivious of the fact that only the right of the judgment debtor over the property alone will pass on to the auction purchaser. The principle of caveat emptor equally applies to such cases. There is no warranty or guarantee of title in respect of the property obtained as per sale certificate issued by the Court. It is axiomatic that only that right which the judgment debtor had over the property will pass on to the auction purchaser and nothing more. The whole argument proceeds on the footing that since the Sy. No., shown in the sale certificate is 255/2 and the total extent shown is 90 cents the plaintiff is entitled to get 90 cents of land whereever it is situated, forgetting for a moment, that the description and boundaries in the plaint do not take in plot A & E. As stated earlier the case advanced before the Court below was that his property extended upto the property of Varghese on the West which R.S.A. No. 938 of 2012 -:12:- would take in plot H. Plot H is admittedly the property of the 2nd defendant covered by the sale deed of 1985. Second defendant was not a party to the earlier proceedings. The plaintiff cannot stretch his hand to grab at that property. All these aspects were rightly considered by the learned Munsiff. That was accepted by the appellate Judge also. 10. In this connection the decision of this Court in **Cherla Poulose Koovappally Kattavil v. K.P. Sathiavan** **Nair and Another - AIR 1970 Kerala 94** can also be referred to where it was held: "It is well known that a Court sale carries with it no guarantee that the property sold in auction is that of the judgment-debtor or that it is free from any defect of title and the principle of caveat emptor applies to such sales. Sale in execution of the decree is not void for the reason that the property sold in court auction does not belong to the judgment-debtor". (See also the decisions in **Ouseph Ouseph v. Devassia** **Chacko - AIR 1953 T.C. 619 and Mathai v. Oommen - 1962 KLT 12** .) 11. There is also the decision of the Supreme Court in **United Bank of India v. Official Liquidator and Others** R.S.A. No. 938 of 2012 -:13:- **- (1994) 1 SCC 575.** There the property was sold by the Official Liquidator. In that case it was held that it is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. Here no document was produced by the plaintiff to show what was the plan of the property that was produced by the mortgagor in favour of the Bank and whether that takes in plots A & E also. Before the Courts below, the plaintiff had no case that his property includes plot A & E. There he contended that his property includes plot H also. property is inclusive of plot H. What is attempted to be proved is not proved and what was pleaded is not pleaded also. Normally the Bank would insist upon production of the plan of the property mortgaged and that will show the lie and position of the property mortgaged. No such document was produced. Simply because as per Ext.A5 settlement deed executed by the father, the first defendant was given 90 cents of land, it R.S.A. No. 938 of 2012 -:14:- cannot be found which was the property actually mortgaged and what was the property actually taken delivery by the Bank pursuant to the delivery effected in the Execution Proceedings. In any event, the contention that plot H is part of the property obtained delivery by the Bank and so the plaintiff is entitled to get plot H cannot be sustained. Now realising the insurmountable difficulty the plaintiff turns volte-face and contends that he is entitled to get the 90 cents of land comprised in Sy.No.255/2. As has been stated above, the boundaries of the property shown in the plaint and in the sales certificate do not take in plots A & E . As per the boundary description the property alleged to have been obtained delivery is plot F, G, J and H. But plot H was not the property held by the first defendant. That property is covered by the title deed of the second defendant. Hence, the plaintiff has absolutely no right over the plot H. Since there was an attempt on the part of the plaintiff to encroach upon the property of the 2nd R.S.A. No. 938 of 2012 -:15:- defendant, he raised a counter claim to fix the boundary and accordingly the Advocate Commissioner has showed the line demarcating the property held by the 2[nd] defendant and the plaintiff's property, in black line, in Ext.C2 (a) plan. All these aspects were considered in detail by the courts below. The dispute pertains to the identification of the property and also as to the title which the plaintiff obtained as per Ext.A1 sale deed executed by the Bank. The plaintiff did not mount the witness box to prove that he has got right over plot H or plot A & E as the plaintiff now wanted to contend. There is absolutely no merit in the contention advanced by the appellant. No substantial question of law is involved. Hence, this Second Appeal is dismissed. Sd/N.K.BALAKRISHNAN, JUDGE ## **ani/das** **// True copy // PA to Judge**