IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 32126 of 2004(Y) -------------------------- PETITIONER(S): --------------- A.R.BINJUA, PUNAYATHU VILLA, AIYARAKUZHI P.O., DHARBAKAD, KADAKKAL, KOLLAM DISTRICT. BY ADV. SRI.C.K.THANU PILLAI SMT.S.SHAINA SRI.S.M.PREM SMT.K.P.SANTHI SRI.S.S.HUSSAIN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, KOLLAM. 3. VILLAGE OFFICER, NILAMEL 4. CHIEF MANAGER, KERALA FINANCE CORPORATION, KOLLAM. 5. THE KERALA FINANCE CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, VELLAYAMBALAM, THIRUVANANTHAPURAM. 6. SRI.A.SHAJAHAN, S/O. ALIYARKUNJU, PERUMPULLIYIL VILAYIL VEEDU, VELLARIMURI, NILAMEL. G.P. SRI.P.NARAYANAN, FOR R1 TO R3 ADV. SRI.A.A.ABUL HASSAN, SC, KFC FOR R4&5 ADV. SRI.T.K.M.UNNITHAN FOR R6 ADV. SRI.V.JAYAKUMAR FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF SALE DEED DT.1.4.2003 EXECUTED BY R6 IN FAVOUR OF THE PETITIONER. P2: TRUE COPY OF THE NON-ENCUMBRANCE CERTIFICATE ISSUED BY THE SUB REGISTRAR, CHADAYAMANGALAM. P3: TRUE COPY OF LETTER DT.7.6.2004 SENT TO R3 BY THE PETITIONER. P4: TRUE COPY OF ACKNOWLEDGEMENT OF THE RECEIPT OF LETTER BY R3. P5: TRUE COPY OF LETTER DT.9.8.2004 SENT TO R1 BY THE PETITIONER. P6: TRUE COPY OF LETTER DT.9.8.2004 SENT TO R2 BY THE PETITIONER. P7: TRUE COPY OF COMMUNICATION DT.16.12.2008 RECEIVED FROM R3. P8: TRUE COPY OF JUDGMENT DT.4.11.2008 IN O.S. NO.132/2006 OF THE MUNSIFF COURT, KOTTARAKKARA. P9: TRUE COPY OF ORDER DT.1.8.2009 IN I.A. NO.1863/2008 IN A.S. NO.154/2008 OF THE SUB COURT, KOTTARAKKARA. P10: TRUE COPY OF ORDER DT.1.8.2009 IN I.A. NO.1768/2008 IN O.S. NO.108/2006 OF THE SUB COURT, KOTTARAKKARA. RESPONDENT'S EXHIBITS: R6(a): TRUE COPY OF AGREEMENT DT.1.4.2003 EXECUTED BY PETITIONER IN FAVOUR OF R6. R6(b): TRUE COPY OF AFFIDAVIYT AND PETITION DT.28.5.2007 ON I.A. NO.766/2007 IN O.S. NO.108/2006 OF THE SUB COURT, KOTTARAKKARA. R6(c): TRUE COPY OF REPLY DT.31.1.2001 FROM THE KFC. R6(d): TRUE COPY OF SKETCH OF THE SCHEDULE OF PROPERTY. R6(f): TRUE COPY OF ENCUMBRANCE CERTIFICATE DT.4.8.2002 ISSUED FROM THE SUB REGISTRY OFFICE REFERRING TO THE LETTER DT.31.5.2001 ISSUED FROM THE KFC TO THE TAHSILDAR AND TO THE VILLAGE OFFICE. TRUE COPY P.S. TO JUDGE P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 32126 of 2004-Y ------------------------------ Dated this the 6th day of October, 2009. J U D G M E N T Heard Sri.S.M.Prem, learned counsel appearing for the petitioner, Sri.P.Narayanan, the learned Government Pleader appearing for respondents 1 to 3, Sri.A.A.Abul Hassan, the learned standing counsel appearing for respondents 4 and 5 and Sri.T.K.M.Unnithan, the learned counsel appearing for the sixth respondent. 2. Shorn of details, the dispute raised in this writ petition relates to the rejection of the request made by the petitioner for transfer of registry. The petitioner purchased 8 cents of land from the sixth respondent as per Ext.P1 sale deed dated 1.4.2003. The said property admittedly forms part of a larger extent of land belonging to the sixth respondent. The lands other than the land conveyed to the petitioner as per Ext.P1 were sold by the sixth respondent to repay a loan availed from the Kerala Financial Corporation. After the sixth respondent cleared his debts, he filed a suit, O.S.No.132 of 2006 in the Court of the Munsiff of Kottarakkara, to set aside Ext.P1 and seeking a mandatory W.P(C) No. 32126 of 2004-Y : 2 : injunction directing the petitioner herein to execute a document conveying the property back to him. By Ext.P8 judgment delivered on 4.11.2008, the Court of the Munsiff of Kottarakkara held that Ext.P1 which was produced as Annexure A1 in the suit is a valid document executed by the sixth respondent conveying the land described therein to the petitioner who was sole defendant in the suit. The suit was accordingly dismissed. The sixth respondent thereupon filed A.S.No.154 of 2008 in the Court of the Subordinate Judge of Kottarakkara. Though in the said appeal, the sixth respondent filed I.A.No.1863 of 2008 for a temporary injunction restraining the petitioner and her men from forcibly dispossessing him from the plaint schedule property or from committing any act of mischief or waste therein or from trespassing into the plaint schedule property and also from inducting strangers therein, the said application was dismissed by Ext.P9 order passed on 1.8.2009. The appellate Court also observed that if the respondent in the appeal (the petitioner herein) sells the property, the said sale and purchase will be subject to the outcome of the appeal. 3. It is not in dispute that A.S.No.154 of 2008 is still W.P(C) No. 32126 of 2004-Y : 3 : pending. The pleadings disclose that on the petitioner's application for transfer of registry based on Ext.P1 sale deed, the Tahsildar took the stand that as there is an order of attachment passed by the Court of Subordinate Judge of Kottarakkara in O.S.No.132 of 2006, transfer of registry cannot be effected. It is evident from Ext.P10 order passed by the Subordinate Judge, Kottarakkara on 1.8.2009 that the order of attachment has been vacated. However it is not known whether the said order has been set aside in appeal or in proceedings if any under 227 of the Constitution of India at the instance of the plaintiff therein. Since there is a pending dispute between the parties to this writ petition, having regard to the observations in Ext.P9 order passed by the Court of the Subordinate Judge of Kottarakkara, I am of the opinion that it would not be proper for this Court to issue a direction to the Tahsildar to effect transfer of registry now. In my opinion, the parties should wait till the appeal filed by the respondent from Ext.P8 judgment is heard and disposed of. Thereafter subject to the outcome of the appeal, it will open to the petitioner to move the Tahsildar afresh seeking transfer of registry. In the event of the petitioner succeeding in the W.P(C) No. 32126 of 2004-Y : 4 : appeal, the Tahsildar and the revenue authorities will necessarily have to effect the transfer of registry. Since more than six years have passed after Ext.P1 sale deed was executed and as the suit instituted only three years thereafter, I am of the opinion that the appeal filed by the sixth respondent from Ext.P8 judgment, should be heard and disposed expeditiously. As otherwise, it will cast a cloud on the petitioner's title. I accordingly dispose of this writ petition with the direction to the Court of the Subordinate Judge of Kottarakkara to hear and dispose of A.S.No.154 of 2008 expeditiously and in any event within three months from the date on which the petitioner produces a certified copy of this judgment. It will open to the petitioner, subject to the out come of the appeal, to move the competent authority to effect transfer of registry and the said authority shall consider the same and pass orders thereon taking note of the fact that the order of attachment passed in O.S.No.108 of 2008 stands vacated by Ext.P10 order. The writ petition is disposed of with the above directions. Sd/- ab P.N.RAVINDRAN, JUDGE