Kerala High Court
Alexander Thomas vs L And T Housing Finance Ltd on 19 June, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
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WA No. 853 of 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
WA NO. 853 OF 2025
AGAINST THE JUDGMENT DATED 25.03.2025 IN WP(C) NO.17022 OF
2023 OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 ALEXANDER THOMAS
AGED 45 YEARS
S/O. THOMAS, RESIDING AT TC.II/2166, MINI BHAVAN, ADARSH
NAGAR, 33, PATTOM, THIRUVANANTHAPURAM, PIN - 695004
2 ALICE CHERIYAN
AGED 43 YEARS
W/O. CHERIYAN, AGED 43, MULLAPPILLIL HOUSE, KANIYAMPARA,
KAVIYOOR, THIRUVALLA - 689 582, REPRESENTED BY POWER OF
ATTORNEY HOLDER, ALEXANDER THOMAS, S/O. THOMAS, RESIDING
AT TC.II/2166, MINI BHAVAN, ADARSH NAGAR, 33, PATTOM,
THIRUVANANTHAPURAM, PIN - 695004
BY ADV SRI.MATHEW SEBASTIAN
RESPONDENTS/RESPONDENTS 1 TO 4 & ADDL. RESPONDENT No.5:
1 L AND T HOUSING FINANCE LTD.
*CORRECTED BHARATHI DIVAKAR, 1ST FLOOR, TC 20/898-C, NEAR
QRS, KARAMANA, TRIVANDRUM REPRESENTED BY AUTHORIZED
OFFICER. *L AND T HOUSING FINANCE LTD., PARAMESWARA
TOWERS, 1ST FLOOR, T.C. 15/1948(4), VAZHUTHACAUD, THYCAD
VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN 695014,
REPRESENTED BY AUTHORIZED OFFICER. (ADDRESS OF 1ST
RESPONDENT IS CORRECTED AS PER ORDER DATED 03.10.2023 IN
I.A.1/2023 IN WP(C),PIN - 695 002.
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WA No. 853 of 2025
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2 MOHAN ZACHARIAH
RINU'S COTTAGE, T.C.3/184, HOUSE NO.66, SANTHOSH NAGAR,
MUTTADA.P.O., THIRUVANANTHAPURAM [ADDRESS OF 2ND
RESPONDENT IS CORRECTED AS PER ORDER DATED 02.11.2023 IN
I.A.3/2023 IN WP(C)], PIN - 695 025
3 SOPHIA EASO
SOPHIA EASO, RINU'S COTTAGE, T.C.3/184, HOUSE NO.66,
SANTHOSH NAGAR, MUTTADA.P.O., THIRUVANANTHAPURAM, PIN 695
025, OFFICE ADDRESS - SOPHIA EASO, ADVOCATE, 2ND FLOOR,
KERALA LAW CHAMBER, KAT ROAD, VANCHIYOOR.P.O.,
THIRUVANANTHAPURAM, PIN 695 035, [ADDRESS OF 3RD
RESPONDENT IS CORRECTED AS PER ORDER DATED 02.11.2023 IN
I.A.3/2023 IN WP(C)], PIN - 695 025
4 VILLAGE OFFICER
PATTOM VILLAGE, PATTOM.P.O., THIRUVANANTHAPURAM TALUK,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 004
5 EDELWEISS ASSET RE-CONSTRUCTION COMPANY
EDELWEISS HOUSE, OFF CST ROAD, KALINA, MUMBAI -400 098
REPRESENTED BY ITS MANAGING DIRECTOR (ADDITIONAL 5TH
RESPONDENT IS IMPLEADED AS PER ORDER DATED 27.02.2024 IN
I.A.1/2024 IN WP(C)), PIN - 400 098
BY ADVS. SMT.MAITREYI SACHIDANANDA HEGDE
SMT.ANJALI ANIL A.
SMT.RADHIKA PRASAD
SMT.VINITHA B, GOVT. PLEADER
SRI.JACOB CHACKO
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.06.2025, THE
COURT ON 19.06.2025 DELIVERED THE FOLLOWING:
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WA No. 853 of 2025
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Dr.A.K.JAYASANKARAN NAMBIAR & P.M. MANOJ, JJ.
----------------------------------------------------
W.A. No. 853 of 2025
----------------------------------------------------
Dated this the 19th day of June, 2025.
JUDGMENT
P.M. Manoj J :
The above writ appeal is preferred against judgment dated 25.03.2025 in
WP(C) No.17022 of 2023. The appellants herein are the legal heirs of late Omana
Mathai, who was the owner in possession of 4.20 Ares of land in old survey
No.1773/2/1, Resurvey No.125, Block No.57 of Pattom Village with a residential
building thereon. The entire litigation pertains to this stretch of land possessed
by late Omana Mathai. This appeal is preferred by the legal heirs of late Omana
Mathai, being aggrieved by the dismissal of the writ petition holding that
"petitioners are before the wrong forum and that the petitioners may work out
their remedies in accordance with law before the appropriate forum."
2. The relevant facts for the disposal of the above Writ Appeal are as
follows. Late Omana Mathai was the owner and in possession of 4.20 Ares of land
in old survey No.1773/2/1 Resurvey No.125, Block No.57 of Pattom Village with a
residential building thereon. Taking advantage of the physical infirmity of late
Omana Mathai, who was deaf and dumb, and also an epileptic patient, one of her
relatives, Sri. Joseph Easo, a retired Professor, managed to create a sale
agreement in his favour. Towards the consideration of the same, an amount of
Rs.10 lakhs was handed over on various dates. Thereafter, he filed a Suit for
specific performance of contract before the II Additional Sub Court,
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Thiruvananthapuram as OS No. 78/2002, which was decreed ex parte on
26.07.2002. Pursuant to the decree, a sale deed was executed by II Additional
Sub Court, Thiruvananthapuram vide document No.2971/2004 of SRO, Pattom
dated 07.06.2004 in the name of Joseph Easo. On knowing this, Omana Mathai
filed a petition to set aside the ex parte judgment and the same was allowed.
However, Joseph Easo preferred to challenge the said order by preferring WP(C)
No.3512/2007 that was disposed by setting aside the order of the Sub Court and
remanding the matter for fresh consideration.
3. Consequently, the petition was considered afresh and was dismissed by
the II Additional Sub Court, Thiruvananthapuram and an appeal against the
judgment and decree dated 26.07.2002 in OS No.78/2002 was filed as RFA
No.542/2008. In the meanwhile, Joseph Easo forcefully took possession of the
property. Later, the appeal was allowed and the ex parte decree and judgment
was set aside by judgment dated 03.01.2014 in RFA No.542/2008 and the matter
remanded for fresh consideration. Thereafter, on 02.03.2015, Omana Mathai
died. Then, the appellants herein and their father M.K. Thomas, got impleaded in
OS No.78/2002 before the II Additional Sub Court, Thiruvananthapuram as
additional defendants 2 to 4. In the said proceedings, the appellants herein filed
a detailed statement, and the matter was pending trial before the II Additional
Sub Court, Thiruvananthapuram. While so, in the light of the decree and judgment
dated 26.07.2002 in OS No.78/2002 being set aside, the appellants and their
father preferred application before the Sub Court, Thiruvananthapuram to set
aside sale deed No.2971/2004 executed by the Sub Court, which was allowed by
order dated 13.01.2016 in I.A. No.2879/2015 in OS No.78/2002. It was also
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ordered to re-deliver the property to the appellants. Alleging non-compliance of
the said direction, the appellants filed I.A. No.451/2016 in OS No.78/2002 for re-
delivery of the property. That was also allowed by order dated 16.02.2016. After
complying with the formalities, the property was re-delivered on 19.02.2016. On
the very same day, the property was taken possession by the Advocate
Commissioner appointed by the Chief Judicial Magistrate, Thiruvananthapuram
in MC No.1123/2015.
4. Being aggrieved by that, the 1st respondent approached this Hon'ble
Court by preferring WP(C) No.39576/2015 for early possession of the properties.
By judgment dated 09.02.2016, the same was allowed. It was the case of the 1 st
respondent that respondents 2 and 3 had availed a Housing Loan for an amount
of Rs.1,15,00,000/- and Rs.23,00,000/- by mortgaging the property in question,
which got defaulted. For the recovery, proceedings under Section 14 of the
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act (for short 'SARFAESI Act') was initiated by the 1 st
respondent. Writ Appeal, filed against the said judgment dated 09.02.2016,
was dismissed.
5. It is the case of the appellants that Joseph Easo had fraudulently
executed sale deed of the property in favour of the 1st respondent as per Sale
deed No.1049/2011 dated 05.04.2011 of SRO Pattom even during the pendency
of RFA No.542/2008, i.e. prior to the cancellation of the sale deed by the order of
II Additional Sub Court, Thiruvananthapuram. According to the appellants, the
sale deed was executed by Joseph Easo to the 1st respondent by suppressing the
fact that an appeal is pending before this Court on that date. Thereafter, on
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18.01.2016, Joseph Easo also died. Thereby, it is contended that the respondents
have no right or interest in the property and it is not clear, how the 1st respondent
granted loan to respondents 2 and 3 by securing the property in dispute without
legal scrutiny of the documents concerned. It is alleged that the loan was granted
in collusion with respondents 2 and 3 and even the Chief Judicial Magistrate
initiated proceedings under Section 14 of the SARFAESI Act without conducting
sufficient enquiry.
6. These facts were suppressed by the 1st respondent before the CJM as
well as before this Court. Later, this Court modified the order of the CJM and the
1st respondent was allowed to take possession of the property by order dated
09.02.2016 in WP(C) No.39576/2015, in which respondents 2 and 3 herein were
respondents 1 and 2, who have not chosen to appear before the Court.
7. Thereafter, the 1st appellant had filed a petition before the 4th respondent
for effecting mutation on the strength of the order of the Sub Court dated
16.02.2016 wherein the delivery of the plaint schedule property was ordered.
Since the mutation was not effected by the 4th respondent, the appellants herein
had brought the same to the notice of the Sub Court. On consideration of the
complaint, a report was called for, from the 4th respondent wherein it was stated
that the 1st respondent is in possession of the property as per Order dated
09.02.2016 in WP(C) No.39576/2015. Thereby, the mutation could not be
effected. However, the cancellation of the sale deed between late Omana Mathai
and Joseph Easo was endorsed by the Registration Department as per Ext.P9.
Thereby, it is contended by the appellants that the sale deed executed by late
Joseph Easo became void and invalid. For the very same reason, the equitable
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mortgage created between 2nd respondent and 1st respondent also became void
and invalid.
8. It is further contended that, on the facts mentioned above, the possession
of the property in question by respondents 1 and 5 is totally illegal and void; that
they have no right to continue in possession of the plaint schedule property; that
the property in question has to be re-delivered to the appellants as the legal title
of the property is with the appellants and they are entitled to get the property
registered in their name. It is further alleged that there is a total dereliction of
duty on the part of the 4th respondent in effecting mutation and the 1st respondent
is duty bound to re-deliver the property to the appellants.
9. This is the circumstance in which WP(C) No.17022 of 2011 was preferred
before this Court for issuance of a writ of mandamus or appropriate order
directing the 1st respondent to handover the vacant possession of the property in
OS No.78/2002 before the II Additional Sub Court, Thiruvnanthapuram to the
petitioners and to order the 4th respondent to effect mutation of the property, i.e.
4.20 Ares of land in old survey No.1773/2/1, resurvey No.125 in Block No.57 of
Pattom Village in the name of the petitioners. The appellants herein are the
children of M.K. Thomas, who are the only legal heirs of late Omana Mathai as
M.K. Thomas died on 18.01.2022.
10. It is further contended that on the strength of Hemareddi (dead)
through Legal Representatives v. Ramachandra Yallappa Hosmani and
others [(2019) 6 SCC 756], under Order XXII Rule 3 CPC, the appellants tried to
establish their locus standi, being the surviving legal heirs to challenge the
judgment of the learned Single Judge. It is also contended that the arguments
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with respect to Section 52 of the Transfer of Property Act, 1882 (for short 'the T.P.
Act')on the strength of T.G. Ashok Kumar v. Govindammal and Another
[(2010) 14 SCC 370], Arshinoor Singh v. Harpal Kaur and Others [(2020) 14
SCC 436] and Padmaja v. Sajeev [2006 (1) KLT 265], were also not considered
by the learned Single Judge in the right perspective. The larger contention is
with respect to Sections 52 and 54 of the T.P. Act. The doctrine of Lis Pendens,
has to be applied, since the sale deeds through which the sole property was sold
to the respondent need to be adjudicated as null and void as the same was sold
during the pendency of the Suit. It is further contended that the availability of
alternative remedy is not a bar for considering the Writ Petition under Article 226
on the strength of Tharakan Web Innovations P. Ltd. V. National Company
Law Tribunal and Another [2022 (2) KLT 746], Magadh Sugar and Energy
Ltd. v. State of Bihar and Others [2021 (5) KLT 667].
11. We have heard Sri. Mathew Sebastian, learned counsel for the
appellant. Smt.Maitreyi Sachidanandan, learned Standing Counsel for the 1st
respondent, Smt.Vinitha B, learned Government Pleader for the 4th respondent
and Sri.Jacob Chacko, learned counsel appearing for the 5th respondent.
12. Going by the aforementioned contentions and considering the complex
facts involved in this case, it appears to us that it is a matter to be decided on
taking evidence by a competent civil court. Merely, on account of the failure of
the 4th respondent to mutate the property in the name of the appellants it cannot
be said that there are sufficient grounds for the exercise of jurisdiction under
Article 226 of the Constitution. Primarily, the entitlement of the appellants has to
be decided by the competent civil court, on the basis of the materials produced
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before it and evidence to be taken on that. Even the other prayer with respect to
the delivery of the property to the appellants by the 1st respondent, as sought in
the writ petition, is a matter that can be adjudicated by the competent civil court.
On considering these aspects, we cannot conceive of a different view than the one
taken by the learned Single Judge. Accordingly, the Writ Appeal fails and is
dismissed. However, it is clarified that the dismissal of this Writ Appeal will not
be a bar for the appellants to approach the competent civil court for establishing
their right over the property based on the sale deed No.2971/2004 dated
07.06.2004.
Sd/-
Dr.A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
P.M. MANOJ
JUDGE
ttb
