IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 RSA.No. 68 of 2011() -------------------- AS.216/2009 of PRL.SUB COURT,TRIVANDRUM OS.1349/2008 of ADDL.M.C.,TRIVANDRUM .................... AAPPELLANT/APPELLANT/DEFENDANT --------------------------------------------- SIVA PRASAD, S/O. LATE KRISHNAN NAIR, TC 27/2000, KODUVARA KAMALALAYAM, CHIRAKULAM ROAD, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.R.SUDHEESHKUMAR SRI.SUNIL KUMAR A.G RESPONDENT(S): /RESPONDENT/ PLAINTIFF ------------------------ RAJESWARI AMMA, D/O.LATE KRISHNAN NAIR, TC 27/2000, KODUVARA KAMALALAYAM, CHIRAKULAM ROAD, VANCHIYOOR, THIRUVANANTHAPURAM. PIN-695035 BY ADV. SRI.RAM MOHAN ADV.SHINOD.G.P. AND MANU.V COUNSEL FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.68 OF 2011 --------------------------------------------- Dated 14th February, 2011 JUDGMENT Defendant in O.S.1349/2008 on the file of Additional Munsiff's Court, Thiruvananthapuram is the appellant. Plaintiff is the respondent. Suit was filed for a mandatory injunction. Respondent is an unmarried lady and appellant is her step brother. Plaint schedule property having an extent of 4.40 cents in survey No.1480/2 of Vanchiyoor village was allotted to the share of the respondent under Ext.A1 settlement deed dated 27/6/1974 as item No.2 therein. Case of the respondent was that on 16/4/2008 her step mother died and appellant is thereafter threatening the respondent to take RSA. 68/11 2 possession of the property and on 20/5/2008, he came to the residence and thrown away her belongings and when her life was in danger, she spent the night with her sister, who is residing nearby and the appellant is threatening to evict her. The suit is filed for mandatory injunction contending that appellant has no manner of right to continue the possession of the building and at best, he could only be a licensee. 2. Appellant resisted the suit contending that Krishnan Nair, his father had originally married Kamalamma and subsequently married the mother of the appellant and as respondent was unmarried, she was staying along with the appellant and his parents. The residential building consists of 3 cents in the plaint schedule property and appellant was born RSA. 68/11 3 and brought up in that property. It is contended that he had constructed the building using his own resources and he has every right to continue to reside in the building. It is contended that on 2/2/1984 respondent had agreed to leave the property to the appellant for the amount spent by him and his parents for her and for renovation of the building and in such circumstances, respondent is not entitled to claim recovery of possession. 3. Learned Munsiff on the evidence of PW1, Dws. 1 and 2 and Exts.A1 to A3 and B1 to B17 granted a decree in favour of respondent finding that Ext.B1 agreement is a concocted agreement and in any case, it was barred by time and the appellant has no right to continue possession of the property and his possession could only be that of a licensee and directed RSA. 68/11 4 the appellant, by mandatory injunction to vacate the building within 30 days. Appellant challenged the judgment before Principal Sub Court, Thiruvananthapuram in A.S.216/2009. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in second appeal. 4. Learned counsel appearing for the appellant and respondent were heard. 5. Argument of the learned counsel appearing for the appellant is that when there is a cloud on the title of the respondent, without seeking a decree for recovery of possssion on the strength of title or decree for declaration of title, a suit for injunction is not maintainable and in such circumstances, the decree granted by the courts RSA. 68/11 5 below is not sustainable. Learned counsel argued that under Ext.B1 agreement, respondent had agreed to assign the property in favour of the appellant for consideration already spent by the appellant and his parents and in such circumstances, decree granted is not sustainable. 6. Title of the respondent to the plaint schedule property under Ext.A1 settlement deed is not disputed. In fact contentions raised by the appellant is that under Ext.B1 agreement for sale, respondent agreed to sell the property. Argument of the learned counsel is that when appellant has set up an agreement for sale and produced Ext.B1 agreement before the trial court, a simple suit for injunction is not maintainable. 7. As rightly found by the courts below RSA. 68/11 6 Ext.B1 agreement was not produced either along with the written statement or at least before examination of the respondent. On the other hand, Ext.B1 agreement was produced subsequently after closing of the plaintiff's evidence, at the time of examination of the appellant. Learned Munsiff and learned Sub Judge appreciated the evidence in the proper perspective and found that Ext.B1 is not a genuine agreement for sale. That finding is a finding of fact arrived at by the courts below on the evidence. I find no reason to interfere with that finding. If that be so, appellant cannot claim any right in the plaint schedule property based on the agreement for sale. More over, as found by the courts below, even if it is a genuine agreement for sale, period for getting specific performance of agreement for RSA. 68/11 7 sale expired much earlier. The only defence available is under Section 53 A of Transfer of Property Act, which is not dependent on the question whether the remedy of specif performance is available or not. But to claim the benefit under Section 53 A of Transfer of Property Act, appellant has to plead and prove the ingredients of the section. There is no pleading claiming the benefit under Section 53 A of Transfer of Property Act, either before the trial court or before the first appellate court or even in the appeal memorandum. In such circumstances, appellant cannot claim any right based on the agreement for sale, to defend the claim for recovery of possession granted by the courts below. No substantial question of law arises for consideration. In such circumstances, appeal can only be RSA. 68/11 8 dismissed. Learned counsel appearing for the appellant then submitted that appellant may be granted time to surrender vacant possession of the property. The trial court granted decree on 30/11/2009 which was confirmed by first appellate court on 22/7/2010. Appellant, who has no right over the property cannot continue possession of the same, especially when respondent is an unmarried lady aged 67 years in 2008. In such circumstances, appellant is not entitled to further time as sought for. Appeal is dismissed. But in view of the submission of the learned counsel appearing for the appellant that daughter of the appellant is studying in Xth standard, if the appellant files an affidavit before the executing court unconditionally undertaking to surrender vacant possession of the building on RSA. 68/11 9 or before 11/4/2011, delivery shall not be effected till then. It is made clear that if affidavit is not filed, executing court is at liberty to grant delivery. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.