IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 RSA.No. 198 of 2004(F) ---------------------- AS.28/1999 of SUB COURT, CHERTHALA OS.28/1985 of ADDL.MUNSIFF COURT,CHERTHALA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- MICKAL JOSEPH, SAJITHA BHAVAN, FROM PALLIPPARAMBIL PADINJATTUMKARA, VADAKKUM MURI, THURAVOOR NORTH VILLAGE. BY ADV. SRI.SABU GEORGE RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. ESSUKUTTY JOSEPH, KALATHIPARAMBIL, PADINJATTUMKARA VADAKKUM MURI, THURVAVOOR NORTH VILLAGE. 2. ESSUKUTTY KUNJUKUNJU, DO. DO. ADV. SRI.K.G.UNNIKRISHNAN NAIR FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.198 OF 2004 ............................................ DATED THIS THE 27th DAY OF JUNE, 2011 JUDGMENT Plaintiff in O.S.28 of 1985 on the file of Additional Munsiff Court, Cherthala is the appellant. Defendants are the respondents. Respondents are admittedly the original owners of the plaint schedule property. Appellant would contend that he entered into an agreement with the respondents for purchase of the plaint schedule property for a consideration of Rs.5600/- and the respondents handed over possession of the property and the house on payment of advance of Rs.5600/- and agreed to execute a sale deed after payment of the balance consideration of Rs.1500/- and meanwhile respondents instituted O.S.148 of 1984 for injunction which was later converted to declaration of title, ownership and recovery of the property and they are not permitting the appellant to carry out the plastering work. Appellant sought a decree for permanent prohibitory injunction restraining respondents from causing obstruction to the plastering work and periodical maintenance. Respondents RSA 198/2004 2 resisted the suit admitting the agreement for sale, but contending that only Rs.200/- was paid as advance and only the house was put in his possession and not the land. It was contending that the agreement for sale is barred by time he filed O.S.158/1984 to restrain the appellant from trespassing into the land and as appellant trespassed into the land, the suit was amended claiming declaration of title and recovery of possession and the appellant is not entitled to the decree sought for. 2. When the suit was included in the special list, appellant remained exparte. O.S.148 of 1984 was decreed. Later that exparte decree was set aside. Both the suits were included in the list to be tried jointly. Again, the appellant remained exparte. O.S.148 of 1984 was decreed. O.S.28 of 1985 was dismissed for default. Later, on 17.7.1998, O.S.28 of 1985 was restored. As O.S.148 of 1984 stood disposed by that time, learned Munsiff tried O.S.28 of 1985 separately. On the evidence of PW1 and Exts.A1 to A4, learned Munsiff dismissed the suit. Appellant challenged the judgment before Sub Court, Cherthala in A.S.28 of 1999. Learned Sub Judge, on reappreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the RSA 198/2004 3 appeal. It is challenged in the second appeal. 2. When the appeal was posted for admission, as it was submitted that O.S.148 of 1984 is pending, notice was issued before admission. 3. Learned counsel appearing for appellant was heard. 4. The learned counsel appearing for appellant pointed out that as per judgment dated 30.9.2008, O.S.148 of 1984 was subsequently dismissed holding that appellant has established his right under Section 53A of Transfer of Property Act, and respondents are therefore not entitled to the decree sought for. The learned counsel would argue that though a first appeal is pending as against the judgment, when appellant has been put in possession of the plaint schedule property, he is entitled to carry out the periodical maintenance and therefore the decree sought for is to be granted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The suit was instituted in 1985 on the allegation that respondents are causing obstruction to the plastering work as well as periodical maintenance. Evidently the suit was instituted, as O.S.148 of RSA 198/2004 4 1984 was instituted by the respondents seeking a decree for injunction contending that appellant has been put in possession of only the building and not the land and also sought a temporary order of injunction. But subsequently, the plaint in O.S.148 of 1984 was amended admitting that appellant is in possession of the land alleging that subsequent to the institution of the suit, appellant trespassed into the land and reduced it into his possession. The question whether the appellant is entitled to right provided under Section 53A of the Transfer of Property Act, was agitated in O.S.148 of 1984. The very fact that respondents sought a decree for recovery of possession in O.S.148 of 1984 even in respect of the land would establish that respondents are not taking law into their hands. In such circumstances, I do not find a decree for injunction as sought for is necessary for carrying out the plastering work necessitated in 1985 or the periodical maintenance as sought for. Hence appeal is dismissed making it clear that rights of the parties is to be finally settled in O.S.148 of 1984. M.SASIDHARAN NAMBIAR, JUDGE lgk