Othayoth Hameedali v. Marunoli Meethal Abdulla and Riyaz

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941** **RSA.No.343 of 2019** **AGAINST THE ORDER/JUDGMENT IN AS 11/2018 of SUB COURT, VADAKARA DATED 26-11-2018** **AGAINST THE ORDER/JUDGMENT IN OS 183/2014 of MUNSIFF COURT, NADAPURAM DATED 31-01-2018** ## **APPELLANT/S:** **OTHAYOTH HAMEEDALI, AGED 48 YEARS S/O.KUNHABDULLA, ODUKKONTAVIDA HOUSE, VELLIYODE AMSOM, DESOM, VATAKARA TALUK.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT/S:** **1 MARUNOLI MEETHAL ABDULLA, S/O.MOOSA, VILATHAPURAM AMSOM, MUTHUVADATHOOR DESOM, VATAKARA TALUK, KOZHIKODE - 673 506.** **2 PUTHUPANAMKANDIYIL RIYAZ, S/O.AHAMMADKUTTY, VANIMEL AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 506.** **BY ADV. SRI.V.RAMKUMAR NAMBIAR** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 4.7.2019, THE COURT ON 19.07.2019 DELIVERED THE FOLLOWING:** 2 RSA.No.343 of 2019 ## **JUDGMENT** The suit was for injunction to protect the possession of the plaintiffs in the plaint schedule property. The trial court decreed the suit. The first defendant went in appeal challenging the decree. His appeal was dismissed by the lower appellate court. 2. The case of the plaintiffs is this: The plaint schedule property was purchased by the first plaintiff from the first defendant in 2012 under Ext A1 sale deed. The defendants had an eye on the property to purchase it for a song. Therefore they prevented the prospective purchasers from purchasing the property. The defendants on 27.9.2014 physically prevented the plaintiffs from entering into the suit property. 3. The defendants raised the following contentions: The first defendant borrowed Rs 10,00,000/- from the first plaintiff as a loan. Besides two signed blank cheques taken from the first defendant, the first plaintiff got Ext A1 document executed in his favour by the first defendant. Although Ext A1 was executed, no sale had taken place. The plaint schedule property is still in the possession of the first defendant. The suit property is not identifiable. 4. Both sides adduced evidence. PWs 1 and 2 were examined and Exts A1 to A9 were marked on the side of the 3 RSA.No.343 of 2019 plaintiffs. On the other side, DWs 1 to 3 were examined and Exts B1 to B8 were marked. Exts C1 to C3 were also marked in the suit. 5. The decree granted by the trial court reads as follows: The defendants are permanently restrained by a prohibitory injunction from trespassing into the plaint schedule property causing any alteration, loss or damage to it or the improvements therein and from interfering with the peaceful possession and enjoyment of the second plaintiff in the plaint schedule property. 6. Heard Sri.B.Krishnan, the learned counsel for the appellant/first defendant. 7. Ext A1 is the certified copy of the sale deed relied on by the plaintiffs. It was admittedly executed by the first defendant in favour of the first plaintiff. The defendants contended that no sale had taken place under Ext A1 although it was executed. According to the defendants, Ext A1 was not acted upon and possession was not handed over to the first plaintiff. Ext A1 recites transfer of ownership and possession to the first plaintiff by the first defendant. Having admitted execution of Ext A1 and having stated in it that possession was handed over to the vendee by the vendor, it is for the first defendant to prove that Ext A1 was not acted upon and that possession was not handed over. 4 RSA.No.343 of 2019 8. In fact, the first defendant had no case to take for trial. The crux of the contentions of the first defendant is that Ext A1 was executed as a security in a loan transaction. But, as stated by the learned appellate judge, the written-statement is silent about the nature of the security and the nature of the understanding between the parties. The first defendant while giving evidence as DW1 stated a new case of execution of another agreement at the time of execution of Ext A1 sale deed. According to DW1, as per the said agreement the property shall be reconveyed to him when the loan was repaid in one year. No such case was pleaded. No evidence without the support of pleadings shall be taken into consideration. The defendants failed to prove their contentions that Ext A1 was not a sale, that the document was not acted upon and that possession was not handed over. 9. Ext A1 evidences a completed sale. It was not a sale with a condition to reconvey in the happening of any event. Handing over of possession is recited in the document. Exts A4 and A7 would evidence payment of land tax by the first plaintiff. The defendants produced no tax receipt evidencing payment of tax by the first defendant after the execution of Ext A1. The recital in Ext A1 and the payment of tax evidenced by Exts A4 and A7 support the evidence of PW1(second plaintiff) that he 5 RSA.No.343 of 2019 came into possession of the plaint schedule property as handed over to him by the first defendant. It must be in this backdrop the oral evidence in the suit should be appreciated. The fact finding courts considered the oral evidence and recorded their findings that the plaintiffs proved their claim of possession. There is no need to reappreciate the oral evidence in the absence of any perversity or misappreciaton of evidence. The plaintiffs proved the first plaintiff to be the person in possession of the plaint schedule property when the suit came. 10. The defendants in their written-statement disputed the identity of the plaint schedule property. The commissioner identified it. Nothing is available to suspect the identification of the property by the commissioner. The first defendant cannot be heard to contend that the plaint schedule property is not identifiable. It was him who sold the property to the first plaintiff. The description, boundaries and measurements of the property shown in the schedule to the plaint and the schedule to Ext A1 are one and the same. The evidence of DW1 suggests that he had a property with the description, boundaries and measurements shown in Ext A1. It was his only property with the said description, boundaries and measurements comprised in Othayoth paramba. The plaint schedule property is identifiable and is identified also. 6 RSA.No.343 of 2019 11. Admittedly the first plaintiff sold the plaint schedule property to the second plaintiff during the pendency of the suit. The learned counsel for the appellant/first defendant submitted that the said sale was hit by Sec.52 of the Transfer of Property Act and therefore the second appeal should be admitted on that ground. Sec.52 does not come to the aid of the first defendant. It cannot be said that every sale of the subject-matter of the suit during the pendency of the suit is bad in law and hit by Sec.52. The _pendente lite_ sale of the plaint schedule property by the first plaintiff to the second plaintiff will be hit by Sec.52 of the Transfer of Property Act only if the first defendant or any other defendant has a legal right in the property. This position of law is clear from the words underlined by me while extracting below Sec.52. ## - **Transfer of property pending suit relating thereto** During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the central government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. ## No defendant has a right in the plaint schedule property to be 7 RSA.No.343 of 2019 affected by reason of the _pendente lite_ sale effected by the first plaintiff in favour of the second plaintiff and no defendant can expect a decree being passed in the suit in his favour. 12. The learned counsel has relied on the decision of a full bench of this court in **Lakshmanan vs Kamal (1958 KLT 851** ). The learned counsel points out paragraph 14 of the judgment of the full bench. The relevant portion is extracted below: “The effect of this section is to render void as against the decree-holder in a suit in which any right to immovable property was in dispute and entitle him to ignore all transfers or other dealing with it by the judgment-debtor from the time of the institution of the suit till the complete satisfaction or discharge of the decree which would affect the decree-holder's rights under the decree or any order made in the suit”. I do not see anything favourable to the appellant/first defendant in the above passage. The decree-holder in the said case was a person who had a right in the property and who received a decree in view of his such right. What is held is that since he has a right in the property and has obtained a decree, the _pendente lite_ transfer of the property made by the judgmentdebtor is void as against the decree-holder and therefore he can ignore the transfer. The position of the appellant/first defendant herein cannot be equated with the decree-holder in the reported 8 RSA.No.343 of 2019 decision. 13. I close the discussion referring to the decision of the apex court in **Nagubai Ammal vs Shama Rao (AIR 1956 SC 593)** . It is held that the effect of Sec.52 is not to wipe out a sale pendente lite altogether, but to subordinate it on the rights based on the decree in the suit. It is also held that as between the parties to the transaction it is perfectly valid, and operated to vest the title of the transferor in the transferee. The supreme court has held that the words “so as to affect the rights of any other party thereto under any decree or order which may be made therein” make it clear that the transfer is good except to the extent that it might conflict with the rights decreed under the decree or order. 14. The appeal is without any merit. No substantial question of law is involved in it. The same deserves only a dismissal. ## 15. Dismissed. **Sd/-** Sks/16.7.2019 **A.M.BABU JUDGE**