RFA Nos.124 & 126 of 2017

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, 1945 RFA NO. 126 OF 2017** **AGAINST THE JUDGMENT IN OS 307/2011 OF I ADDITIONAL SUB COURT,** **ERNAKULAM** **-----** ## **APPELLANT/DEFENDANT:** DR.MANJU ELIZABETH SEBASTIAN, AGED 37, W/O.GEORGE SCARIA, C/O.DR.V.D.SEBASTIAN, VALIYA VEETTIL, XXXVII/2314A, PONOTH ROAD, EXTENSION, KALOOR, KOCHI-17. NOW RESIDING AT FLAT NO.4, DOCTOR'S QUARTERS, LITTLE LOURDS MISSION HOSPITAL, KIDANGUR, KOTTAYAM. BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **RESPONDENT/ADDL.3RD PLAINTIFF:** MRS. NIVEDITHA SHERIFF, AGED 53 YEARS, W/O.K.K.SHERIFF, CC NO.4/42, A.CHERALAI, NEW ROAD, MATTANCHERRY, KOCHI-682002. BY ADVS. SRI.M.A.ABDUL HAKHIM SRI.R.RAJESH K THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 18.12.2023, ALONG WITH RFA.124/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, 1945** ## **RFA NO. 124 OF 2017** **AGAINST THE JUDGMENT IN OS 570/2011 OF I ADDITIONAL SUB COURT,** ## **ERNAKULAM** **-----** ## **APPELLANT/PLAINTIFF:** DR.MANJU ELIZABETH SEBASTIAN, AGED 37 YEARS, W/O.GEORGE SCARIA, FLAT NO.4, DOCTOR'S QUARTERS, LITTLE LOURDS MISSION HOSPITAL, KIDANGUR, KOTTAYAM. BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **RESPONDENTS/DEFENDANTS 1 TO 4 ADDL. 7TH DEFENDANT:** 1 KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM. 3 REGIONAL ENGINEER, KERALA STATE HOUSING BOARD, REGIONAL OFFICE, PANAMPILLY NAGAR, KOCHI-682036. 4 THE EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD, ERNAKULAM DIVISION, PANAMPILLY NAGAR. **RFA NO. 124 OF 2017 -2-** 5 NIVEDITHA SHERIFF, W/O.K.K.SHERIFF, CC NO.4/42, A.CHERALAI, NEW ROAD, MATTANCHERRY, KOCHI-682002. BY ADVS. SRI.DENNY DEVASSY SRI.M.A.ABDUL HAKHIM SRI.R.RAJESH MANOJ RAMASWAMY V.HARISH THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 18.12.2023, ALONG WITH RFA.126/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RFA Nos.124 and 126 of 2017** **= = = = = = = = = = = = = = = = = = Dated this the 18[th] day of December, 2023** ## **J U D G M E N T** R.F.A. No.124 of 2017 arises from O.S. 570/2011. The plaintiff in the suit is the appellant. The suit is one for declaration of title, for setting aside a sale deed and for injunction against trespass. 2. RFA 126/2017 arises from OS 307/2011. The defendant in the suit, who is the plaintiff in OS 570/2011, is the appellant. The suit is one for recovery of possession on the strength of title and for damages for use and occupation. The plaintiffs in OS 307/2011 are the defendants 5 to 7 in OS 570/2011. The trial court dismissed OS 570/2011 and decreed OS 307/2011. 3. Plaintiffs 1 and 2 in OS 307/2011 are the wife and son of late A.E.Thomas. The defendant in OS 307/2011, who is the plaintiff in OS 570/2011 is the niece of late A.E. Thomas (his sister Rosaline Sebastine's daughter). The additional third plaintiff in RFA Nos.124 & 126 of 2017 -: 2 :- OS 307/2011, who is the additional 7[th] defendant in OS 570/2011 is a transferee pendente lite from plaintiffs 1 and 2 in OS 307/2011. 4. For the sake of convenience, the first plaintiff in O.S.307 of 2011 is hereinafter referred to as, “the plaintiff”, and the plaintiff in O.S.570 of 2011 is referred to as, “the defendant”. 5. A.E.Thomas was at Bombay. His sister-Rosaline Sebastian was at Ernakulam. Sri.A.E.Thomas booked for an apartment at Ernakulam in a project of the Kerala State Housing Board (defendants 1 to 4 in OS 570/2011). Since he was at Bombay, all the dealings regarding the purchase was through his sister Rosaline. Ext.A3 dated 03.11.1987 is the allotment letter issued by the Housing Board to Sri.A.E.Thomas. For going ahead with the transaction, Sri.A.E.Thomas executed Ext.B2 Power of Attorney dated 05.06.1989 in favour of his sister Rosaline. RFA Nos.124 & 126 of 2017 -: 3 :- 6. It is the case of the defendant that, in course of time, during the year 1996, Sri.A.E.Thomas decided not to come back to Ernakulam and agreed to transfer the apartment to his sister Rosaline's daughter (niece of A.E.Thomas) namely, the defendant. Necessary steps in the said regard were taken. The documents as was required by the Housing Board, to enable transfer including payment of transfer fee and purchase price were complied with by Rosaline and the defendant as early as on 11.04.1996. However, the Housing Board failed to execute the sale deed. The defendant made repeated requests to the Housing Board for execution of the sale deed which were not headed to. Finally the Housing Board as per Ext.A12 letter dated 06.12.1996 intimated the defendant that the transfer cannot be effected since the original allottee has refused consent for transfer. As per the directions of this Court in W.P.(C) No.16668/2009 the Board considered the request RFA Nos.124 & 126 of 2017 -: 4 :- of the plaintiff but, declined the request. The appeal preferred before the appellate authority was also rejected. In the meanwhile, the Housing Board executed Ext.A1 Sale Deed dated 16.11.2010 in favour of the plaintiff (the first plaintiff in OS 307/2011) who is the wife of late A.E. Thomas. It is thereafter that the suit O.S.570/2011 has been filed by the defendant. The defendant claims that there is a concluded transfer in her favour on payment of the transfer fee. There is also an alternate claim of adverse possession. In the suit, relief is claimed to set aside Ext.A1 Sale Deed, declare the title of the defendant (plaintiff in OS 570/2011) and for prohibitory injunction against trespass. In OS 307/2011 the plaintiff seeks for recovery of possession on the strength of title and damages for use and occupation. 7. The trial court held that there was no completed transfer of the rights of A.E.Thomas in favour of the RFA Nos.124 & 126 of 2017 -: 5 :- defendant (plaintiff in OS 570/2011), and that Ext.B2 power of attorney did not empower his sister Rosaline to transfer his rights to third parties. The plea of adverse possession was also negatived. The trial court granted the plaintiff a decree for recovery of possession with mesne profits. This suit OS 570/2011 was dismissed. 8. Heard learned counsel on either side. 9. The learned Senior Counsel for the appellant would submit that, the transfer of the rights of A.E.Thomas to the defendant was complete on 11.04.1996 when the transfer fee was paid under Ext.A9. The cancellation of the power of attorney by A.E.Thomas was only after Ext.A9. Therefore, the Housing Board was bound to execute the sale deed in favour of the defendant. Ext.A1 sale deed executed by the Board in favour of the plaintiff who is the wife of late A.E.Thomas, is liable to be set aside, it is contended. RFA Nos.124 & 126 of 2017 -: 6 :- The learned Senior Counsel would further submit that at any rate, the defendant was in possession of the apartment in question since the year 1996 as absolute owner and hence has prescribed title over the same by virtue of adverse possession and limitation. 10. In terms of Section 54 of the Transfer of Property Act, sale of immovable property with value of ` 100/- and upwards could be effected only by a registered document. Admittedly there is no such conveyance in favour of the defendant (plaintiff in OS 570/2011). Hence she cannot claim that she has obtained title over the property. 11. Now the question is whether on payment of the purchase price and transfer fee there has been a completed assignment of the rights of A.E.Thomas in favour of the defendant. 12. Ext.A6 is the application before the Housing Board seeking permission to transfer the apartment from RFA Nos.124 & 126 of 2017 -: 7 :- the name of A.E.Thomas to the defendant. It was submitted in the name of A.E.Thomas by his sister Rosaline in her capacity as his power of attorney holder. Ext.A6 is dated 20.03.1996. Ext.A7 is the reply dated 29.03.1996 given by the Board. Ext.A7 required submission of certain documents and remittance of transfer fee. The contents of Ext.A7 is of significance and is extracted hereunder:- _“_ _Sub : KSHB – KHU – Kaloor HAS – FF6(D)12-reg. Ref : Your Lr. Dtd: 20.3.96_ _. . . . . ._ _With reference to the above, you are requested to submit the following documents in order to consider your request for transfer of allotment within 30 days._ _1. Relationship Certificate from the Tahsildar concerned._ _2. Remit Rs.1,000/- as transfer fee by DD drawn in favour of KSHB payable at Ernakulam._ _3. Affidavit (form enclosed) on stamp paper worth Rs.15/- duly signed by the transferee and attested by a Gazetted Officer._ RFA Nos.124 & 126 of 2017 -: 8 :- _4. Certificate from the Commissioner of Kochi Corporation and Tahsildar Kochi and Kanayannur to the effect that the transferee does not own a plot/plot with building/flat in her name or in the name of her husband or minor children within the limits of Kochi Corporation.”_ Immediately, on 01.04.1996, the entire balance purchase price was paid by the defendant. Thereafter the other documents were produced before the Board, and on 11.04.1996 as per Ext.A9, the transfer fee was also paid. The contention is that, since all the documents as required by the Board were submitted, the entire sale consideration and transfer fee also having been remitted, assignment of the rights have been completed as on 11.04.1996. Here the first paragraph of Ext.A7 extracted above assumes significance. It says:- _“With reference to the above, you are requested to submit the following documents in order to consider your request for transfer of allotment within 30 days.”_ RFA Nos.124 & 126 of 2017 -: 9 :- 13. All that Ext.A7 said was that, to consider the request for transfer, the documents as mentioned therein are to be made available. Ext.A7 does not indicate that on complying with the directions therein there would be an automatic assignment or that an assignment would follow. It only said that, on production of the documents as mentioned therein, the request for assignment would be considered. Here it is surprising to note that, even though Ext.A7 did not require payment of the balance purchase price, the defendant proceeded to pay the entire purchase price immediately, within two days thereafter i.e. on 01.04.1996, as per Ext.Ext.A8. The Housing Board maintains that there has been no assignment of rights to the defendant. Pertinently, there is no document to evidence such assignment. Ext.A12 is the communication dated 06.12.1996 issued by the Housing Board to the defendant. A reading of Ext.A12 shows that it was sent in reply to the request of the RFA Nos.124 & 126 of 2017 -: 10 :- defendant, seeking transfer of allotment in her name from the name of A.E.Thomas. In Ext.A12 it is categorically stated that, since the original allottee has objected to the transfer of allotment, the Housing Board cannot effect transfer of allotment as sought for. The relevant portion of Ext.A12 reads thus, _“Since the original allottee vide his letter dt.8.6.96 has objected the transfer of allotment proposed by the PA holder the Housing Board is unable to concede to the request of Dr.Rosaline Sebastian and to transfer the allotment in your favour”._ 14. Ext.A13 is the letter dated 31.12.1996 issued by the defendant to the Board. Therein again she refers to her request for transfer of allotment and states that it was not properly considered by the concerned. The relevant portion of Ext.A13 reads thus, _“...I wish to submit that my request for transfer of the allotment_ _has not been properly considered”._ RFA Nos.124 & 126 of 2017 -: 11 :- Therefore, it is evident that there had been no transfer of the allotment rights in favour of the defendant and the parties were also well aware of the same. 15. Here it is to be noticed that, the Housing Board had not required the defendant to pay the balance sale consideration. It was voluntarily paid by her and that too, immediately on receipt of Ext.A7. The very fact that in Ext.A7 letter, the Board specified the documents that are to be submitted to consider the request for transfer of allotment and that the Board did not require the defendant to pay the balance sale consideration, coupled with the circumstances noticed supra, leaves no room for doubt that there has not been any transfer of allotment on payment of the transfer fee under Ext.A9 on 11.04.1996. The payment of transfer fee and compliance with the other conditions as were required under Ext.A7 only enabled consideration of the request for transfer of allotment. Therefore, the RFA Nos.124 & 126 of 2017 -: 12 :- argument of the learned Senior Counsel that on payment of transfer fee under Ext.A9 there has been transfer of allotment, fails. 16. It is the argument of the learned Senior Counsel for the appellant that, when A.E.Thomas had executed a power of attorney in favour of his sister Dr.Rosaline and a request was submitted by Dr. Rosaline as the power of attorney holder seeking transfer of the allotment rights from A.E.Thomas to her daughter, there was no occasion for the Housing Board to have written a communication to A.E.Thomas to “give his explicit consent” for considering the request for transfer of allotment. When there was a valid power of attorney based on which the power holder had been dealing with the Housing Board, there was no occasion for the Housing Board to have sought for such a clarification from the principal. The cancellation of the power of attorney by A.E.Thomas is also of no avail since the transfer was RFA Nos.124 & 126 of 2017 -: 13 :- completed before cancellation, it is contended. 17. The contention of the appellant that there has been a completed transfer has already been negatived by me earlier. For the very same reason, the argument of the appellant as above, is bound to fail. The appellant finds fault with the Housing Board in having sought for confirmation from Sri.A.E.Thomas with regard to the proposed transfer. When there was a power of attorney recognised by the Housing Board and the attorney had been acting thereunder, there was no occasion for the Board to seek a further assurance from the principal, it is argued. May be, if the power of attorney empowered such act of transfer, it was not necessary for the Housing Board to have sought for confirmation from A.E.Thomas with regard to the proposed transfer of allotment. However, that is not a ground to allege malafides. If the power of attorney empowered the attorney to seek for transfer and the Housing Board RFA Nos.124 & 126 of 2017 -: 14 :- failed to act, the defendant could have sought for a mandatory injunction seeking such relief. On the other hand, there is no reason for the power of attorney holder or the defendant who claims to have obtained some benefits by some acts of the power of attorney holder to object to the act of the Housing Board in having sought for a confirmation from the Principal with regard to the proposal for transfer. It is in fact the conduct of the defendant in finding fault with such action of the Housing Board, which raises eyebrows. If the act was bonafide there was no reason why the defendant should be aggrieved by the course adopted by the Board. Ultimately what has happened is only that, the principal on coming to know about the proposal of transfer objected to the same and cancelled the power of attorney. A power of attorney holder only acts on behalf of the principal. He is to act as per the directions of the principal. _**In State of Rajasthan v. Basant Nahata (AIR 2005 SC 3401),**_ the Apex Court RFA Nos.124 & 126 of 2017 -: 15 :- held that a power of attorney holder is in a fiduciary capacity to the principal and has to act in utmost good faith. 18. Incidentally, a reading of Ext.B2 Power of Attorney indicates that the power of attorney was executed to enable the power holder to do such acts as may be necessary to complete the transfer of the apartment in favour of Sri.A.E.Thomas and for matters incidental thereto. Ext.B2 does not seem to suggest a power having been given to transfer the rights in favour of third parties. It is settled law that the terms of a power of attorney are to be construed strictly. The trial court has found that Ext.B2 did not empower the attorney to effect transfer in favour of third parties. As noticed just before, if the defendant was entitled for transfer of allotment and to get a sale deed executed nothing prevented the defendant from seeking such reliefs in the suit. Curiously the plaint does not RFA Nos.124 & 126 of 2017 -: 16 :- contain such a relief. May be in such a suit, the question of the extent of authority granted under Ext.B2 Power of Attorney, whether there has been exercise of powers under the same, the validity of its cancellation etc. would have cropped up for determination. 19. Next, coming to the plea of adverse possession, even going by the case of the defendant she is yet to get conveyance of the title from the Housing Board and the possession is only under the Board and acknowledging their title. On that reason the contention has to fail. Moreover, as has been noticed by the trial court, while the very sufficiency of the pleading of adverse possession is doubtful, it is important to note that a plea of adverse possession needs to be supported by evidence regarding proof of the mental element of hostile animus. However, no oral evidence is adduced by the defendant in this regard. The defendant has not mounted the witness box. In the absence of evidence, the RFA Nos.124 & 126 of 2017 -: 17 :- plea of adverse possession fails. 20. Coming to the reliefs claimed in OS 570/2011, the first prayer is to set aside Ext.A1 Sale Deed executed by the Housing Board in favour of the plaintiff namely, the first defendant in that suit viz. wife of A.E.Thomas. At paragraph 10 of the plaint it is alleged, _“It is respectfully submitted that the officials of the Board especially defendants 3 and 4 colluded with the 5[th] defendant in executing the document without the concurrence from the Kerala State Housing Board. This was alone at a time when appeal was pending with the Board and the 4[th] defendant was aware of the same. This is a clear case of malafide exercise of power, for reason known to the defendants. Among other things, on the ground of collusion and want of authority also document No.2913/10 is liable to be set aside.”_ Without considering the sufficiency of the plea, even taking it to be a sufficient plea of fraud, there is no evidence to support the plea. The mere fact that pending RFA Nos.124 & 126 of 2017 -: 18 :- an appeal the sale deed was executed, by itself is not sufficient to find fraud and collusion. None of the vitiating factors rendering Ext.A1 Sale Deed voidable and making it liable to be set aside are proved. That apart, having held that there had been no transfer of rights in favour of the defendant, she has no right vested in her to challenge the sale deed. In the said circumstances, the prayer for setting aside Ext.A1 Sale Deed is only to fail. 21. The second relief claimed in OS 570/2011 is to declare that the plaintiff is the rightful owner of the apartment in question. As has been held supra, title over the apartment never vested with her. So also it has been held that she has not even become the allottee. Therefore, no rights vested with her. Hence, the said prayer is also not liable to be granted. 22. The third prayer is for a prohibitory injunction restraining trespass. The defendant is RFA Nos.124 & 126 of 2017 -: 19 :- admittedly in possession. The power of attorney authorised the defendant to secure possession from the Board. The plaintiff being the holder of title under Ext.A1 Sale Deed and the additional third plaintiff having got assigned the rights under Ext.B5 Sale Deed, is entitled to recover possession of the apartment from the defendant. The suit OS 307 of 2011 has been filed for the relief of recovery of possession. Therefore, the question of grant of any injunction does not arise. 23. In OS 307 of 2011, the plaintiffs seek for recovery on the strength of their title. As found above the relief is liable to be granted. The suit contains further prayer for recovery of damages for use and occupation. The defendant is bound to pay damages for use and occupation. Damages claimed is at the rate of ` 3,500/- per month. The defendant does not have a case that the quantum claimed is excessive. The trial court has granted decree only for the period from the date of RFA Nos.124 & 126 of 2017 -: 20 :- the decree. The decree and judgment of the trial court in the said regard also warrants no interference. Resultantly, the appeals fail and are dismissed. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF RFA 126/2017** |RESPONDENT ANNEXURES|| |---|---| |ANNEXURE A1(A)|TRUE PHOTOGRAPH DATED NIL TAKEN ON 16/09/2023| ||SHOWING THE CONDITION OF THE PLAINT SCHEDULE| ||APARTMENT FROM OUTSIDE.| |ANNEXURE A1(B)|TRUE PHOTOGRAPH DATED NIL TAKEN ON 16/09/2023| ||SHOWING THE CONDITION OF THE PLAINT SCHEDULE| ||APARTMENT FROM OUTSIDE.| |ANNEXURE A1(C)|TRUE PHOTOGRAPH DATED NIL TAKEN ON 16/09/2023| ||SHOWING THE CONDITION OF THE PLAINT SCHEDULE| ||APARTMENT FROM OUTSIDE.| |ANNEXURE A1(D)|TRUE PHOTOGRAPH DATED NIL TAKEN ON 16/09/2023| ||SHOWING THE CONDITION OF THE PLAINT SCHEDULE| ||APARTMENT FROM OUTSIDE| |ANNEXURE A1(E)|TRUE PHOTOGRAPH DATED NIL TAKEN ON 16/09/2023| ||SHOWING THE CONDITION OF THE PLAINT SCHEDULE| ||APARTMENT FROM OUTSIDE.| |ANNEXURE A1(F)|TRUE PHOTOGRAPH DATED NIL TAKEN ON 16/09/2023| ||SHOWING THE CONDITION OF THE PLAINT SCHEDULE| ||APARTMENT FROM OUTSIDE.| |ANNEXURE A2(A)|TRUE PHOTOGRAPH DATED NIL TAKEN ON 16/09/2023| ||SHOWING THE CONDITION OF ANOTHER APARTMENT| ||NO.FF6-B 10 IN THE SAME FLOOR OF THE PLAINT| ||SCHEDULE APARTMENT, FROM OUTSIDE.| |ANNEXURE A2(B)|TRUE PHOTOGRAPH DATED NIL TAKEN ON 16/09/2023| ||SHOWING THE CONDITION OF ANOTHER APARTMENT| ||NO.FF6.B 10 IN THE SAME FLOOR OF THE PLAINT| ||SCHEDULE APARTMENT, FROM OUTSIDE.| -----