IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 644 of 2005()
1. P.M. RAPHAEL, AGED 50 YEARS,
... Petitioner
Vs
1. MARYKUTTY, AGED ABOUT 47 YEARS,
... Respondent
2. ANJU, AGED ABOUT 32 YEARS,
3. ABI, AGED ABOUT 30 YEARS,
4. JOJO, AGED ABOUT 28 YEARS,
For Petitioner :SRI.T.KRISHNAN UNNI
For Respondent :SRI.T.V.ANANTHAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 644 OF 2005
............................................
DATED THIS THE 20th DAY OF JULY, 2007
JUDGMENT
Defendant in O.S.660 of 1999 on the file of Additional Sub
Court, Ernakulam is the appellant. Plaintiffs are respondents.
The plaint schedule property admittedly originally belonged to
Anil Bhaskar as purchased from GCDA. According to
respondents, from Anil Bhaskar, second respondent wife of the
first respondent purchased the property and permitted
appellant to occupy the building as a licensee on a monthly
license fee of Rs.675/-. Contending that the license was
terminated, suit was instituted seeking a decree for recovery of
possession and for arrears of license fee. Appellant resisted the
suit contending that respondents did not perfect their title as no
registered sale deed was executed by the assignor of the
respondents, Anil Bhaskar and even GCDA did not transfer title
to Anil Bhaskar. It was therefore contended that respondents
are not entitled to claim recovery of possession on the strength
of title. It was further contended that making the appellant
believe that first respondent is the absolute owner of the plaint
schedule property, an oral agreement for sale was entered into
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with first respondent on 22.2.1987 for sale of the plaint schedule
property for a total consideration of Rs.52,000/- and towards the
sale consideration advance of Rs.5000/- was paid on 22.2.1987
and subsequently on 3.6.1989, towards the balance
consideration 20 sovereigns of gold were given and thereby the
entire consideration was paid, but sale deed was not executed as
first respondent did not get title by that time. It was admitted
case that when the suit was filed, G.C.D.A had not transferred
the title and only allotment was made to Anil Bhaskar which was
obtained by respondents. During the pendency of the suit under
Ext.A27 dated 23.6.2000, title to the plaint schedule property
was transferred by GCDA directly to first respondent. Therefore
first respondent is the absolute title holder of the plaint schedule
property.
2. Learned Sub Judge granted a decree for recovery of
possession holding that as appellant is only claiming right only
under an oral agreement for sale, he is not entitled to any
protection under Section 53A of the Transfer of Property Act, in
the absence of a written agreement for sale and as title of first
respondent was not transferred in favour of the appellant, first
respondent is entitled to the decree for recovery of possession
RSA 644/2005 3
sought for on the strength of title. But decree for arrears of
license fee was not granted finding that there was monetary
transaction between the parties which has not been settled.
Appellant challenged the decree and judgment before District
Court, Ernakulam in A.S.58 of 2002. Respondents did not
challenge the decree, refusing the claim for arrears of license
fee. Learned District Judge, on reappreciation of evidence,
confirmed the findings of learned Sub Judge and dismissed the
appeal. It is challenged in the second appeal.
3. Learned counsel appearing for appellant and
respondents were heard.
4. The title of first respondent obtained under Ext.A27 is
not disputed. The only contention was that when the suit was
filed respondents had no title, as the title then vested with
GCDA. But appellant is also contending that he was put in
possession of the property by first respondent, making him
believe that he is the title holder. It is clear from the evidence
that first respondent could not get the title at the time of
institution of the suit, as the building was alloted to Anil
Bhaskar. But under Ext.A27 title has now been transferred to
first respondent. Hence on the strength of title respondents are
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entitled to get a decree for recovery of possession unless
appellant has a better title or he has perfected his title by
adverse possession and limitation.
5. As rightly found by courts below, appellant is not entitled
to the protection provided under Section 53A of the Transfer of
Property Act, as even according to appellant there is no written
agreement for sale. Hence appellant cannot dispute the title of
respondents. As appellant is admitting the title and is only
setting up an agreement for sale, he is not entitled to contend
that title of respondents is barred by adverse possession and
limitation. In such circumstances courts below rightly granted
the decree for recovery of possession, though decree for
realisation of arrears of license fee was not granted, which
portion of the decree has already become final. In such
circumstances I find no substantial question of law involved in
the appeal and it is only to be dismissed.
6. Learned counsel appearing for appellant then
submitted that appellant may be granted reaasonable time to
vacate the building. It was submitted that the execution petition
is posted for 21.7.2007. If the appellant files an affidavit before
the executing court within five days from today, undertaking to
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surrender the plaint schedule property unconditionally on the
expiry of three months from today, executing court shall
postpone the delivery for three months from today.
Appeal is dismissed, with the above observation.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-