IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 RSA.No. 56 of 2011 -------------------------------- AS.158/2007 of SUB COURT,NEYYATTINKARA OS.860/2002 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANTAPPELLANT/PLAINTIFF: IGNATIOUS LAYOLA, S/O. G.C.ALEXANDER, KP IX/619, PUTUVAL PURAYIDOM, PARUTHIYOOR P.O., KULATHOOR VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.P.K.BEHANAN SRI.ARUN PAUL JACOB RESPONDENTS/RESPONDENTSDEFENDANTS: 1. JERALD, S/O. G.C.ALEXANDER, POURNAMI, CHAMBAYIL THERUVU, KADAVATARAM DESOM, NEYYATTINKARA TALUK. PRESENT ADDRESS: 'KARTHIKA', POOVAR ROAD, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE,-DO- TALUK, -DO- P.O., TRIVANDRUM DISTRICT, PIN-695 121. 2. GIGI, S/O. JERALD, DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.56 of 2011 -------------------------------------- JUDGMENT Plaintiff in O.S.No.860/2002 on the file of Additional Munsiff's Court, Neyyattinkara is the appellant. Defendants are the respondents. Appellant instituted the suit for declaration of title to the plaint schedule property and for permanent prohibitory injunction. 2. Plaint schedule property is forty cents in R.S.No.319/2 of Kulathoor Village. It is the admitted case that eighty cents, including the plaint schedule property, originally belonged to Alexander. Appellant is claiming title to the plaint schedule property based on Exhibit A6 Otty Kuzhikanam deed executed on 28.11.1956 by Alexander in favour of Simiyon Netto. Exhibit A1 sale deed was executed by his son in favour of appellant on 30.3.1993. It is the case that he has title to the plaint schedule property under Exhibit A6. Respondents would contend that Alexander created Exhibit A7 otty kuzhikanam deed dated 7th Makaram 1117 M.E. in favour of Rosamma. Subseuqnetly, under Exhibit A22 (Exhibit B1) he assigned his rights over the entire RSA 56/11 2 eighty cents in favour of Rosily, who, subsequently, assigned it under Exhibit B5 assignment deed dated 8.1.1971 in favour of M.P.Immanueal, who, under Exhibit B6 sale deed dated 17.8.1977, assigned it in favour of first respondent. It is, therefore, contended that appellant has no right, title or possession over the plaint schedule property. 3. Learned Munsiff, on the evidence of PWs 1 and 2 and Exhibits A1 to A25 and B1 to B10, dismissed the suit finding that appellant has no title or possession over plaint schedule property. Appellant challenged the judgment before Sub court, Neyyattinkara in A.S.No.158/2007. Learned Sub Judge, on re- appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that under Exhibit A6 otty kuzhikanam deed, Simiyon Netto, the predecessor in interest of the appellant, obtained the property and subsequently, under Exhibit A1 sale deed, son of the mortgagee, transferred his rights in favour of the appellant and since then, RSA 56/11 3 appellant has been in possession of the property and hence, he is entitled to the decree sought for. Learned counsel would argue that though courts below relied on Exhibit A22, it is not valid, as the subject matter of the assignment deed was mortgaged earlier and therefore, first respondent cannot claim any right over plaint schedule property. 6. Exhibit A6 otty kuzhikanam deed, relied on by the appellant, itself establishes that before the said mortgage, Alexander had executed Exhibit A7 otty kuzhikanan deed on 7th Makaram 1117 M.E. Exhibit A6 shows that there is a recital that that mortgage will be redeemed and possession will be handed over within a period of two months. Exhibit A6 was dated 28.11.1956. It is clear that mortgagee Simiyon Netto did not get possession of the property under Exhibit A6 on 28.11.1956. There is no case that subsequent to the redemption of Exhibit A7 mortgage deed, by Exhibit A4 redemption deed dated 14.9.1960, possession was handed over. Moreover, as rightly found by the courts below, on 28.11.1956, when Exhibit A6 mortgage was created by Alexander, he had no right over the property. By Exhibit A22 assignment deed dated 31.8.1954, Alexander had RSA 56/11 4 transferred his entire rights over the eighty cents. Though learned counsel argued that it is invalid because, the property has been in possession of the mortgagee, Exhibit A22 is in respect of eighty cents of property. As far as forty cents is concerned, it is absolutely clear that there was no mortgage over that property. He is definitely entitled to transfer that property though Exhibit A7 mortgage, in favour of Rosamma, was in existence in respect of forty cents. But, Alexander had the right of equity of redemption over the said forty cents. That equity of redemption was transferred in favour of Rosily. Therefore, on 28.11.1956, the date of execution of Exhibit A6, Alexander had absolutely no right over the property. The equity of redemption of Exhibit A7 mortgage was transferred in favour of Rosily. Therefore, though Exhibit A4 shows that Exhibit A7 mortgage was redeemed, when equity of redemption was not available with Alexander, he could not have redeemed the mortgage. At best, it would only be a transfer of the mortgage right available under Exhibit A7 in favour of Alexander. If that be so, appellant can claim right over the property only if there was transfer of mortgage right under Exhibit A7 subsequent to Exhibit A4. RSA 56/11 5 Appellant has no such case. In such circumstances, findings of the courts below that appellants are not entitled to the decree for declaration of title or possession is perfectly legal. No substantial question of law is involved in the appeal. Appeal is dismissed. 16th February, 2011 (M.Sasidharan Nambiar, Judge) tkv