Kerala High Court
M.Abdul Rasheed vs Nallattuthodika Shahul Hameed on 6 February, 2020
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947
RSA.No.361 OF 2008
AGAINST THE DECREE & JUDGMENT 20.2.2008 IN AS 103/1998 OF SUB
COURT, TIRUR
AGAINST THE DECREE & JUDGMENT DATED 18.07.1998 IN OS 269/1995 OF
MUNSIFF COURT,PARAPPANANGADI
APPELLANT/RESPONDENT/PLAINTIFF:
M.ABDUL RASHEED,
S/O.MALIYEKKAL AHAMEDKUTTY HAJI, AGED 32 YEARS,
P.O.OORAKAM, OORAKAM AMSOM DESOM, VENGARA,
TIRURANGADI TALUK, MALAPPURAM DISTRICT.
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SMT.DEEPA NARAYANAN
SMT.PREETHI. P.V.
SRI.M.V.BALAGOPAL
RESPONDENT/APPELLANT/DEFENDANT:
NALLATTUTHODIKA SHAHUL HAMEED,
S/O.N.T.HAMSA HAJI, AGED 50 YEARS, P.O.VENGARA,
VENGARA AMSOM DESOM,, TIRURANGADI TALUK, MALAPPURAM
DISTRICT.
R1 BY ADV. SRI.JAMSHEED HAFIZ
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No.361 OF 2008 2
JUDGMENT
The dispute involved between the parties to the litigation is with respect to the right of seller over the upstair portion of a building which was the subject matter of an earlier sale, namely Exts.B3 and B4. The plaintiff claims title over the upstair portion of the building based on Ext.A1 and A2, two subsequent deeds executed by the same owner. The above said documents were executed in favour of the plaintiff overlooking the earlier sale under Exts.B3 and B4 on the ground that in the above said sale deeds, only one room was specified without specifying the right over the upstair portion of the building.
2. It is too unfortunate that Exts.A1 and A2 documents were created after parting with right, title and interest over the entire immoveable property. The above said two documents were created RSA.No.361 OF 2008 3 fraudulently simply on the reason that in the earlier documents of transfer Exts.B3 and B4, nothing was specified with respect to upstair portion. The upstair portion was subsequently given under Exts.A1 and A2 taking the above said advantage.
3. The legal position was very much settled in Kodiyan v. Karambi ( 2007 (2) KLT 361) that when there is transfer of immoveable property, everything attached to the earth, unless specifically excluded will go along with the landed property. No substantial question of law involved in the appeal. The appeal fails, dismissed. No costs.
Sd/-
P.SOMARAJAN, JUDGE pm