IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 SA.No. 91 of 1998(C) ------------------------------- AS.60/1997 OF SUB COURT, TIRUR OS.51/1993 OF MUNSIFF COURT, PARAPPANANGADI .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------------- KODAMBADAN HASSAN, S/O.MAMMED, CHELEMBRA AMSOM DESOM, ERNAD TALUK. BY ADV. SRI.T.KRISHNANUNNI RESPONDENT/RESPONDENT/DEFENDANT: ------------------------------------------------------------- ULLADANTHODI MARAKKAR, S/O.AHAMMED, CHELEMBRA AMSOM DESOM, ERNAD TALUK. BY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. ------------------------------------- SA No.91 of 1998-C ------------------------------------- Dated this the 22nd day of February 2011 Judgment The plaintiff is the appellant. 2. The suit was one for permanent injunction. The plaintiff claimed that plaint B schedule property, which is a pathway running through the northern boundary of the defendant's property, was assigned to the him by the predecessor-in-interest of the defendant as per Ext.A2. On the basis of Ext.A2, he claimed exclusive right to use the property covered by Ext.A2. Since the defendant tried to interfere with his right of use and possession of the suit property, the suit was laid. 3. The defendant denied the existence of plaint B schedule pathway. He disputed the genuineness of Ext.A2 and contended that it is a concocted document. On the basis of the above contentions, he prayed for a dismissal of the suit. SA 91/98 2 4. On the basis of the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendant examined DW1 and had Ext.B1 marked. Exts.C1 to C4 are the commissioner's report and plan. 5. On going through the judgment passed by the trial court, there is no clear finding as to whether Ext.A2 is a genuine document or not. It is seen that it was contended that Ext.A2 was executed colluding with the younger brother of the defendant, who was not on good terms with the defendant. Even though the trial court was suspicious about the evidence of the attesting witnesses, it did not, in so many words, enter a finding regarding the genuineness of Ext.A2. 6. There was, in fact, no finding rendered by the trial court whether the plea based on Section 53A of the Transfer of Property Act is available. The trial court SA 91/98 3 negatived the relief on the basis that the document is a sale deed and since the value shown is Rs.100/-, it ought to have been registered. Therefore, the plaintiff is not entitled to the protection of Section 53A also and dismissed the suit. The matter was carried in appeal as AS No.60/97 before the Sub Court, Tirur. The lower appellate court concurred with the trial court and dismissed the appeal. 7. Notice is seen issued on the following question of law framed by this court : a) Is the court below justified in holding that Section 53A of the Transfer of Property Act is not applicable to the facts of this case ? 8. It is true that Ext.A2 is styled as a sale deed. If it is a genuine document, possession had been handed over to the plaintiff and the vendor says that he no longer has any manner of right over the property covered by Ext.A2. The word 'theeru' (sale deed) is seen mentioned in the document. The mere fact that it is nomenclatured as a SA 91/98 4 sale deed, by itself is not a ground to hold that the plaintiff is not entitled to the benefit of Section 53A of the Transfer of Property Act. It is significant to notice that in Ext.A2 itself, it has been stated that the parties intended to execute a sale deed in future. This aspect has not been considered by the lower appellate court. It is fairly conceded by the learned counsel for the appellant that the plaint does not contain a plea regarding Section 53A of the Transfer of Property Act. This is a matter of interpretation of the document. So, it is felt that a reconsideration of the issues is necessary at the hands of the trial court. In the result, this appeal is allowed. The impugned judgment and decree of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated hereinabove. The parties shall appear before the trial court on 30.03.2011. The trial court shall make every endeavour to dispose of the matter as expeditiously as possible, at any rate, within six months SA 91/98 5 from the date of appearance of the parties before it. P.Bhavadasan, Judge sta SA 91/98 6