M. Salim Kumar v. M. Jayachandran and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 RSA.No. 110 of 2010() --------------------AS.156/2007 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.326/2005 of MUNSIFF COURT,PATHANAMTHITTA .................... APPELLANTS/RESPONDENTS 1 TO 4/DEFENDANTS 1 TO 4 ------------------------------------------------------------------- 1. M.JAYACHANDRAN, AGED 56 YEARS, S/O.DAMODHARAN.P.M, MUDISSERIL, ULLANNOOR, KULANADA VILLAGE. 2. INDIRA BHAI, AGED 54 YEARS, W/O.JAYACHANDRAN, MUDISSERIL, ULLANNOOR, KULANADA VILLAGE. 3. CHANDRA LEKHA, AGED 28 YEARS, D/O.JAYACHANDRAN, MUDISSERIL, ULLANNOOR, KULANADA VILLAGE. 4. CHANDRAJITH, AGED 25 YEARS, S/O.JAYACHANDRAN, MUDISSERIL, ULLANNOOR, KULANADA VILLAGE. BY ADV. SRI.M.NARENDRA KUMAR SMT.LAYA SIMON RESPONDENT(S): APPELLANT/PLAINTIFF AND 5TH DEFENDANT -------------------------------------------------------------- 1. M.SALIM KUMAR, AGED 49 YEARS, S/O.P.M.DAMODHARAN, MUDISSERIL, ULLANNOOR, KULANADA VILLAGE. 2. DAMODARAN, AGED 82 YEARS, MUDISSERIL, ULLANNOOR, KULANADA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A.No.110 of 2010 -------------------------------------Dated this the 1[st] day of February, 2010.** ## **JUDGMENT** Second Appeal is brought from judgment and decree of learned Additional District Judge, Pathanamthitta in A.S.No.156 of 2007 modifying judgment and decree of learned Munsiff, Pathanamthitta in O.S.No.326 of 2005. That was a suit instituted by respondent No.1/plaintiff for declaration of his title and prohibitory/mandatory injunction against appellants and respondent No.2. Appellant No.1 and respondent No.1 are the children of respondent No.2/defendant No.5. Appellant Nos.2 to 4 are wife and children of appellant No.1. Suit property originally belonged to respondent No.2 who assigned the same to respondent No.1 as per Ext.A1, sale deed No.439 of 2001. Respondent No.1 purchased the property subject to a life interest created in favour of his parents. Mother of appellant No.1 and respondent No.1 is no more. Respondent No.1 was abroad during the relevant time and hence he contended that original sale deed was entrusted to appellant No.1 for effecting mutation. When he came back to his native place after a few years he learnt that mutation has not been effected in his name. Instead, appellants tried to trespass into the suit property and hence the suit. Along with seeking declaration of his title he prayed for a prohibitory injunction restraining appellants from trespassing into the suit property and for a mandatory injunction to direct appellant No.1 to handover the original of Ext.A1 to him. Appellants while admitting execution of **RSA No.110/2010** 2 sale deed (Ext.A1) claimed that respondent No.1 has no right over suit property in that the entire sale consideration was not paid. Respondent No.1 still had to pay Rs.40,000/- being part of the sale consideration. Appellants are in possession of the suit property. After the registration of sale deed the original document was collected by appellant No.1 and he is in custody thereof. Appellant No.1 is entitled to continue in possession of suit property and retain the sale deed until balance sale consideration is paid to appellant No.1. Trial court found that as contended by the appellants, a sum of Rs.40,000/- is outstanding to be paid to appellant No.1 towards sale consideration stated in Ext.A1 but, respondent No.1 has acquired title of the property. However it was found that possession of the suit property remained with the appellants and hence prohibitory injunction prayed for cannot be granted. In view of the finding that respondent No.1 was to pay Rs.40,000/- towards sale consideration trial court has found that appellant No.1 is entitled to retain the original sale deed since he has a statutory charge over the suit property. Since judgment and decree of trial court were not to the satisfaction of respondent No.1, he challenged the same in A.S.No.156 of 2007. Against the finding regarding title a cross objection was preferred by the appellants. First appellate court allowed the appeal in part finding that possession of suit property is with respondent No.1 and granted prohibitory injunction. So far as mandatory part of injunction regarding delivery of original sale deed is concerned first appellate court **RSA No.110/2010** 3 concurred with the trial court. Accordingly cross objection was dismissed. Decree as modified by first appellate court and dismissal of cross objection are under challenge in this appeal at the instance of defendant Nos.1 to 4. Substantial questions of law urged for consideration are whether courts below are justified in not upholding right of appellant No.1 to retain possession under Section 55(1)(f) of the Transfer of Property Act (for short, “the Act”) and whether right of appellant No.1 to realise unpaid sale consideration should not be recognised and enforced in one action and whether courts below were bound to grant declaration of charge of appellant No.1 with direction that appellant No.1 is entitled to recover the amount by sale of property. It is contended by learned counsel for appellants that finding of first appellate court that respondent is in possession of the suit property is not correct. Placing reliance on the decision in ## **Pearey Lal v. Hub Lal (AIR (32) 1945 Allahabad 139)** it is contended by learned counsel that in so far as appellant No.1 is in possession of suit property he is entitled to remain in such possession until balance sale consideration is paid. 2. So far as title of respondent No.1 is concerned Ext.A1, CC of sale deed in question shows that appellant No.1 has conveyed his right, title and interest in the suit property in favour of respondent No.1. So far as payment of balance sale consideration is concerned Ext.A1 itself says that of the total of **RSA No.110/2010** 4 Rs.60,000/- respondent No.1 paid Rs.20,000/- on the date of sale and the balance sum of Rs.40,000/- was to be paid to appellant No.1 against a registered receipt. There is no case or evidence that any such registered receipt was obtained by respondent No.1. It is in these circumstances that courts below found in favour of the contention of appellants that respondent No.1 still had to pay Rs.40,000/- being part of sale consideration. But, non-payment of that amount will not in any way affect title conveyed to respondent No.1 as per Ext.A1. It has been held by the Supreme Court in **Vidhyadhar v. Manikrao and another ((1999) 3 SCC 573)** that non-payment of sale consideration will not in any way invalidate the sale or affect title of purchaser. Therefore courts below are legally justified in holding in favour of the title claimed by respondent No.1. 3. So far as possession of property is concerned, trial court entered a finding that it is with the appellants. But first appellate court reversed that finding relying on Ext.A1 and the recital therein. Ext.A1 permitted respondent No.1 to possess and enjoy the property from the date of its execution. Argument of learned counsel for appellants is that though it is so stated in Ext.A1, the document does not say that possession was handed over to respondent No.1. To support their claim of possession appellants produced Exts.B1 and B2. Ext.B1 is a receipt dated 11.8.2005 for payment of building tax. That receipt was **RSA No.110/2010** 5 in favour of respondent No.2/defendant No.5, father in whose favour right of residence in the house situated in the suit property has been reserved even as per Ext.A1. Ext.B2 is a electricity bill dated 11.8.2005 issued to respondent No.2/defendant No.5. These documents cannot in any way advance the case of appellants regarding possession. Ext.X1 is in respect of two buildings bearing door Nos.420 and 421. Building bearing door No.420 admittedly belong to appellant No.1 and is situated in the property adjacent to suit property. The other building referred to in Ext.X1 is building bearing door No.421 which is situated in the suit property and assessment is in the name of respondent No.2/defendant No.5. There is nothing strange in the assessment being made in the name of respondent No.2/defendant No.5. As seen from Exts.B1, B2 and X1 since as I stated, Ext.A1 itself reserves a right of residence for respondent No.2/defendant No.5. That does not in any way advance the case of appellants that they are in possession of suit property. Ext.A1 though it is not specifically stated that possession is handed over to respondent No.1 empowers him to possess and enjoy the property. That corroborates his version that he is in possession. I must bear in mind the close relationship of appellant No.1 and respondent No.1, being direct brothers and the fact that during the relevant time respondent No.1 was working abroad. Even if it is assumed that in the absence of respondent No.1 from his native place appellant No.1 has been looking after or even squatting over the suit property that does not amount to 'possession' as **RSA No.110/2010** 6 understood in law. 'Possession' in legal parlance means the physical possibility of a person dealing with the 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. There must be an intention on the part of possessor to exercise control over the subject matter and to exclude others from it. (See **Anies v. Rapai (1986 KLT 1204** ). Having regard to the close relationship between parties, recital in Ext.A1 and the circumstances stated above I am not persuaded to think that appellants or any of them had 'possession' of the suit property as understood in legal parlance and as stated above to the exclusion of others including respondent No.1. In that circumstances first appellate court is justified in holding in favour of possession claimed by respondent No.1. 4. Yet another argument advanced by the learned counsel that until repayment of balance sale consideration appellant No.1 is entitled to be in possession of the property. It is in support of that contention learned counsel has placed reliance on the decision in Pearey Lal v. Hub Lal (supra). The said decision is to the effect that if vendor continues to be in possession, in equity he is entitled to be so until payment of entire sale amount. The Supreme Court has struck a different opinion in Vidhyadhar v. Manikrao and another (supra) where in paragraph Nos.40 and 42 it is stated with reference to the statutory charge in favour of unpaid vendor under Section 55(4)(b) of the Act **RSA No.110/2010** 7 that though the unpaid vendor has a charge for the unpaid price that does not enable him to retain or claim possession of the property. If that be so, on the strength of statutory charge appellant No.1 has over the suit property, he cannot claim to be in possession of suit property. I also found that first appellate court is legally correct in holding that appellants have no possession of suit property. If that be so first appellate court is justified in modifying the decree of trial court and dismissing the cross objection. On going through judgments under challenge and hearing learned counsel I do not find any substantial question of law involved in this Second Appeal requiring admission. Resultantly, Second Appeal is dismissed in limine. I.A.No.268 of 2010 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**