IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 RSA.No. 1076 of 2010 ----------------------------------- AS.153/2004 of ADDITIONAL DISTRICT COURT (ADHOC-1), MANJERI OS.142/2002 of MUNI-MAGI.COURT,PERINTHALMANNA .................... APPELLANTS/APPELLANTS/PLAINTIFFS: 1. AANIKADAN KADEEJA, D/O.KUNHI MIHAMMED HAJI, AYANIKADAN HOUSE, AMMINIKKAD.P.O, MALAPPURAM DISTRICT. 2. SUBAIDA, D/O.KADEEJA, AYANIKKADAN HOUSE, AMMINIKKAD, MALAPPURAM DISTRICT. BY ADV. SMT.M.A.ZOHRA RESPONDENT/RESPONDENT/DEFENDANT: CHELAMUKATH SOOPI HAJI, S/O.SAIDUTTY, CHELAMUKTH HOUSE, MINIKKAD P.O, MALAPPURAM DISTRICT. BY ADV. SMT.R.RANJINI THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.1076 of 2010 --------------------------------------- JUDGMENT Plaintiffs in O.S.No.142/2002 on the file of Munsiff- Magistrate Court, Perinthalmanna are the appellants. Defendant is the respondent. The suit was instituted for recovery of possession and for a mandatory injunction contending that under Exhibit A1 sale deed, appellants purchased the plaint schedule property from Musthafa, who, in turn, obtained the property under Exhibit A2 sale deed from Alavi and appellants have thus absolute right and title to the plaint schedule property. It is contended that respondent trespassed into a portion of plaint A schedule property, namely, plaint B schedule property and he has no manner of right or title over it and therefore, appellants are entitled to recover possession of that portion and a mandatory injunction is to be granted directing respondent to demolish the wall constructed on the northern side of plaint B schedule property. 2. Respondent resisted the suit contending that though Musthafa assigned six cents of property under Exhibit A2/B5 assignment deed to the appellants, Alavi obtained ten cents of RSA 1076/10 2 property under Exhibit B2 sale deed and before execution of Exhibit B2 sale deed, under Exhibit B3 sale deed, in 1973, he transferred six cents of property in favour of Hamsa, from whom, under Exhibit B4, respondent purchased the property and in such circumstances, appellants have no title to the property. 3. Learned Munsiff, on the evidence of PW1, DW1, Exhibits A1 to A4, B1 to B5 and C1 and C1(a), dismissed the suit finding that appellants have no tittle to plaint B schedule property. Appellants challenged the judgment before Additional District Court, Manjeri in A.S.No.153/2004. Learned Additional District 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 appellants and respondent were heard. 5. Argument of the learned counsel appearing for the appellants is that it was under Exhibit A1 sale deed appellant purchased plaint A schedule property and plaint B schedule property forms part of plaint A schedule property and the assignor under Exhibit A2 obtained that property from Alavi. Alavi is the brother of the respondent. Alavi had measured the RSA 1076/10 3 property and put Musthafa in possession of plaint A schedule property and therefore, appellants have title to plaint A schedule property and courts below should have granted a decree as sought for. 7. Admittedly, plaint A schedule property, along with the remaining property, originally belonged to the respondent. As per Document No.1142/1967, respondent obtained that property. Respondent, thereafter, under Exhibit B2 registered sale deed 4301/1967 dated 12.12.1967 transferred ten cents of the property in favour of Alavi. Alavi, under Exhibit B3 registered assignment deed dated 15.8.1973, transferred a portion of that property in favour of Hamsa. The property so transferred, as shown in Exhibit B3, is six cents. Hamsa, thereafter, under Exhibit B4 assignment deed dated 19.11.1983, transferred the property obtained under Exhibit B3 in favour of the respondent. It is, subsequent to Exhibit B3 registered assignment deed, Alavi transferred the property under Exhibit A2 assignment deed. It cannot be disputed that Alavi is competent to sell only the property which remained with him after execution of Exhibit B3 assignment deed, which was transferred under Exhibit B4 in 1983. Therefore, when six cents was transferred under Exhibit RSA 1076/10 4 B3 in 1973, what remained with Alavi, subsequent to 1973, is only four cents. As Exhibit B3 assignment deed established that Alavi transferred six cents of property in favour of Hamsa, Alavi could transfer only the balance four cents in favour of Musthafa. Therefore, Musthafa got title only to that property. As Musthafa has title only to that property, he has no right to transfer six cents under Exhibit A1 sale deed. Appellants cannot claim title to the excess extent under Exhibit A1. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. Learned counsel appearing for the appellants submitted that on the ground of dismissal of the second appeal, right and possession of the appellants over the extent of the property found to be in their possession by the learned Munsiff may not be disturbed. As the suit is only for recovery of possession and mandatory injunction, I find no necessity to provide any further direction, as the suit was dismissed and no recovery was granted in favour of the respondent. 25th February, 2011 (M.Sasidharan Nambiar, Judge) tkv