Syed Kunju vs The Village Officer
2022 Latest Caselaw 2941 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                   THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

          WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943

                              WP(C) NO. 22130 OF 2021

PETITIONERS:

     1         SYED KUNJU,
               AGED 43 YEARS
               S/O. ALIYAR KUNJU, KADUVAKUZHI THADATHARIKATHU VEEDU, PAZHAYA
               THERUVUMURI, ARYANAD P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM.

     2         NOUSHAD,
               S/O. ALIYAR KUNJU, IRFANA MANZIL, KOLLODE P.O.,
               THIRUVANANTHAPURAM.

     3         SUMAYYA BEEVI,
               D/O. ABDUL SALAM, SALAMIYA, PALLIVETTA, ARYANAD P.O.,
               THIRUVANANTHAPURAM, REPRESENTED BY HER POWER OF ATTORNEY HOLDER
               ABDUL SALAM S., S/O.SAMALABHA, RESIDING AT SALAMIYA, PALLIVETTA,
               ARYANAD P.O., THIRUVANANTHAPURAM.

               BY ADVS.
               PHILIP T.VARGHESE
               THOMAS T.VARGHESE
               ACHU SUBHA ABRAHAM
               V.T.LITHA
               K.R.MONISHA
               SHRUTHI SARA JACOB



RESPONDENTS:

     1         THE VILLAGE OFFICER,
               ARYANAD VILLAGE OFFICE, THIRUVANANTHAPURAM-695542.

     2         THE TAHSILDAR (LR),
               TALUK OFFICE, NEDUMANGADU, THIRUVANANTHAPURAM-695541.

  *ADDL R3     MANAGER,
               KERALA STATE FINANCIAL ENTERPRISES, NEYYATTIN KARA MAIN BRANCH,
               NEYYATTINKARA, THIRUVANANTHAPURAM- 695121

               *(ADDL.R3 IMPLEADED AS PER ORDER DATED 28.10.2021 IN I.A.1/2021
               IN WP(C) 22130/2021)
 WP(C) NO. 22130 OF 2021

                                        2



            BY ADV SHRI.SALIL NARAYANAN K.A., SC, KSFE LTD.



OTHER PRESENT:

            SMT.MABLE C KURIAN -SR GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2022,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 22130 OF 2021

                                       3




                                JUDGMENT

The petitioners seek a direction to 1 st and 2nd respondents to

transfer Registry of the property involved in this case in their favour;

however, conceding that the 3 rd respondent - Kerala State Financial

Enterprises (KSFE), is claiming a mortgage on it, but which is factually

disputed. The petitioners thus pray that the competent among

respondents 1 and 2, be directed to effect transfer of Registry based on

Exts.P1 to P3 Sale Deeds, within a time frame to be fixed by this Court .

2. The afore request of Sri.Thomas T. Varghese - learned

counsel for the petitioners, was answered by Sri.Salil Narayanan -

learned Standing Counsel for the 3rd respondent, saying that they have

sufficient documents to establish that the property in question is

subject to an equitable mortgage in their favour, which was executed by

the predecessors-in-interest of the petitioners and therefore, that

Exts.P1 to P3 Sale Deeds, cannot give them any better right over the

property. He, therefore, prayed that this writ petition be dismissed.

3. The learned Senior Government Pleader - Smt.Mable

C.Kurian, submitted that, on account of the disputes between the

petitioners and respondent No.3, the 2 nd respondent - Tahsildar has WP(C) NO. 22130 OF 2021

been incapacitated from acceding to the request of the former.

4. When I consider the afore submissions, it is indubitable that,

on one hand, the petitioners say that they are the full owners of the

property pursuant to Exts.P1 to P3; while, the 3 rd respondent says that

before the said documents had been executed, its predecessors-in-

interest had availed a loan on its collateral security, by creating an

equitable mortgage over it.

5. Obviously, therefore, even if the request of the petitioners

for transfer of Registry is to be acceded to by the 2 nd respondent, it will

have to be subject to any mortgage claimed and established by the 3 rd

respondent. This is, in fact, conceded to even by the petitioners.

In the afore perspective, I order this writ petition to the limited

extent of directing the 2nd respondent to accede to the request of the

petitioners for transfer of Registry of the property covered by Exts.P1 to

P3 in their favour; however, subject to any mortgage that may be

enforced against it by the 3rd respondent as per law.

The afore exercise shall be completed after affording an

opportunity of being heard to the petitioners as also the authorized

official of the 3rd respondent, thus culminating in an appropriate order

and necessary action thereon, as expeditiously as is possible but not WP(C) NO. 22130 OF 2021

later than one month from the date of receipt of a copy of this judgment.

SD/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 22130 OF 2021

APPENDIX OF WP(C) 22130/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE SALE DEED NO.1813/2014 OF SRO, ARYANAD DATED 11/09/2014.

Exhibit P2 TRUE COPY OF THE SALE DEED NO. 1814/2014 OF SRO, ARAYANAD DATED 11/09/2014.

Exhibit P3 TRUE COPY OF THE SALE DEED NO. 1815/2014 OF SRO, ARAYANAD DATED 11/09/2014.

Exhibit P4 TRUE COPY OF THE JUDGMENT IN WPC NO.26444/2016 PASSED BY THIS HON'BLE COURT DATED 14/08/2019.

Exhibit P5 TRUE COPY OF THE LETTER NO.6112/2019 ISSUED TO THE 2ND PETITIONER BY THE 1ST RESPONDENT DATED 10/12/2019.

Exhibit P6 TRUE COPY OF THE LETTER NO.6112/2019 PASSED BY THE 1ST RESPONDENT TO THE 3RD PETITIONER DATED 10/12/2019.

Exhibit P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.

Exhibit P8 TRUE COPY OF THE SAID JUDGMENT IN WPC NO. 18125/2014 DATED 07/10/2014.

Exhibit P9 TRUE COPY OF LETTER NO. F1-3942/2021(4) ISSUED BY 2ND RESPONDENT DATED 28/04/2021.