Kerala High Court
Jisho Thomas vs Babu Samuel on 7 October, 2016
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 7TH DAYOF OCTOBER 2016/15TH ASWINA, 1938
WP(C).No. 29315 of 2016 (L)
----------------------------
PETITIONER:
-------------------
1. JISHO THOMAS, AGED 38 YEARS,
S/O.MERCY THOMAS, MADATHIL HOUSE,
BUNGLOW PARAMBIL, CANAL WARD,
AMBALAPUZHA TALUK, ALAPPUZHA.
2. NIVYA JOHN, AGED 28 YEARS,
W/O.JISHO THOMAS, MADATHIL HOUSE,
BUNGLOW PARAMBIL, CANAL WARD,
AMBALAPUZHA TALUK, ALAPPUZHA.
(PETITIONERS NOS. 1 & 2 REPRESENTED BY
THEIR POWER OF ATTORNEY HOLDER MERCY THOMAS,
AGED 61 YEARS, W/O.THOMAS, MADATHIL HOUSE,
BUNGLOW PARAMBIL, CANAL WARD,
AMBALAPUZHA TALUK, ALAPPUZHA).
BY ADVS.SRI.REJI GEORGE,
SRI.BINOY DAVIS.
RESPONDENTS:
------------------------
1. BABU SAMUEL,
AGED 49 YEARS,. S/O.SAMUEL,
MOZHASSERIL HOUSE, ASHRAMAM WARD,
ARYANAD SOUTH MURI, AVALOOKUNNU P.O,
ALAPPUZHA DISTRICT-688 006.
2. L.I.C. HOUSING FINANCE LTD.,
AREA OFFICE BRANCH, SARADA COMPLEX,
2ND FLOOR, MULLAKKAL, ALAPPUZHA, PIN-688 011.
3. THE KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD,
T C 20/2170, BASANT, OPPOSITE MANMOHAN BUNGLOW,
KOWDIAR,THIRUVANANTHAPURAM-695 003.
WP(C).No. 29315 of 2016 (L)
4. THE DISTRICT COLLECTOR,
PALACE ROAD, CIVIL STATION WARD,
ALAPPUZHA-688 001.
5. THE TAHSILDAR,
AMBALAPUZHA TALUK OFFICE,
ALAPPUZHA DISTRICT, PIN-688 561.
6. THE VILLAGE OFFICER,
VILLAGE OFFICE, ARYAD SOUTH VILLAGE,
ALAPPUZHA DISTRICT, PIN-688 006.
R3 BY ADV. SRI.MOHAMMED SHAH, SC.
R4 TO R6 BY SR. GOVT. PLEADER SMT.K.R. DEEPA.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 07-10-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 29315 of 2016 (L)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.5312/2010 OF SRO,
ALAPPUZHA DTD 19/08/2010.
EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE
DEEDS EXECUTED BY THE IST RESPONDENT IN FAVOUR OF
THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE SALES CERTIFICATE ISSUED BY THE
2ND RESPONDENT TO THE PETITIONERS AND REGISTERED
AS DOCUMENT NO. 80/2015 OF SRO, ALAPPUZHA DTD 09/01/2015.
EXHIBIT P4 TRUE COPY OF THE APPLICATION DTD 25/07/2016 SUBMITTED BY
THE PETITIONERS BEFORE THE 6TH RESPONDENT TO EFFECT
TRANSFER OF REGISTRY IN THEIR FAVOUR.
EXHIBIT P5 TRUE COPY OF NON-ATTACHMENT CERTIFICATE NO. 7983/2010
DTD 13/07/2010 ISSUED BY THE 6TH RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
SHAJI P. CHALY, J.
---------------------------------------
W.P.(C). NO. 29315 OF 2016
----------------------------------------
Dated this the 07th day of October, 2016
JUDGMENT
Petitioners are husband and wife and they are the absolute owners in possession of 1.7 Ares of property in Re- Survey No.2 of Block No. 96 of Aryad South Village and the residential building situated thereon, covered by Ext. P3 sale certificate issued by the second respondent, under the provisions of SARFAESI Act. However, the sixth respondent refused to mutate the property into the name of the petitioners on the basis that some revenue recovery proceedings initiated at the request of the third respondent is pending against the property of the petitioners for recovery of the amounts due from the first respondent to the third respondent. According to the petitioners, W.P.(C). NO. 29315 OF 2016 2 petitioners purchased the property free of all encumbrance evident from the non-attachment certificate issued by the Village authorities. Since, inspite of the earnest efforts respondents failed to mutate the property, petitioners have submitted Ext. P4 application requesting to mutate the property and inspite of the same, there is no action from the part of the sixth respondent and it is in this background seeking appropriate direction, this writ petition is filed.
3. Heard learned counsel for the petitioners, learned Government Pleader and learned counsel appearing for the third respondent.
4. Learned counsel for the petitioners reiterated the contentions raised in the writ petition. On verification of the documents produced, I am satisfied that Ext. P3 is a title accrued to the petitioners, on the basis of a sale conducted under the SARFAESI Act. Therefore, by virtue of Ext. P3 petitioners became vested with the properties in question. The process of effecting mutation is a consequential act, to securing title to the property. It is in order to complete the W.P.(C). NO. 29315 OF 2016 3 formalities pursuant to Ext. P3, petitioners have approached the sixth respondent and later filed Ext.P4 application. Learned counsel for the petitioners has also pointed out the judgment of this Court in Thulasibhai v. State of Kerala [2010 (4) KLT 215], wherein this court had occasioned to consider the issue with respect to effecting mutation during pendency of recovery proceedings and held that the pendency of recovery proceedings is not a bar for effecting mutation. It is also held therein that by effecting mutation a person will not be accrued with a better title. Therefore, it is the contention of the learned counsel for the petitioners that the sixth respondent will have to take a decision, within a time frame taking into account also the legal principles laid down by this Court in the aforequoted judgment.
5. I had the advantage of also hearing learned counsel for the third respondent, who objected to the proposal put forth by the petitioners. However, the provisions of the Transfer of Registry Rules, 1966 contemplates an adjudication when a serious dispute is W.P.(C). NO. 29315 OF 2016 4 raised with respect to effecting mutation. Therefore, it is for the sixth respondent to adjudicate the issue especially on the basis of Ext. P4 application submitted by the petitioners, after hearing the respective parties. In that view of the matter, I think it is only appropriate that a direction is issued to the sixth respondent to take on board Ext.P4 application and consider the application submitted by the petitioners, in accordance with law, after providing notice of hearing to the petitioners as well as the third respondent and take a decision on the same, in accordance with law, within two months from the date of receipt of a copy of this judgment.
Writ petition is disposed of accordingly.
SHAJI P. CHALY JUDGE DCS