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M. A. ABDUL HAKHIM
OTHAYOTH PADMINI D/O ACHUTHAN – Appellant
Versus
C. V. MUHAMMED SAJID S/O KHALID – Respondent
JUDGMENT :
M.A. ABDUL HAKHIM, J.
1. The Plaintiff in a suit for permanent Prohibitory injunction is the appellant.
2. The Trial Court dismissed the suit. The First Appellate Court dismissed the appeal filed by the plaintiff confirming the judgment and decree of the Trial Court. This Regular Second Appeal is filed challenging the judgment and decree of the First Appellate Court confirming the Trial Court judgment. This Court had issued notice before admission in this Regular Second Appeal, and hence, the respondent has appeared.
3. I heard the learned counsel for the appellant, Sri. V.R.K. Kaimal and the learned counsel for the respondent, Sri. K.V. Sohan.
4. The facts of the case are more or less admitted. The plaintiff derived the Plaint Schedule property having an extend of 5.85 Acres as per Ext.A1 Sale deed of the year 1997. Plaintiff mortgaged the said property in the year 1997 with Madayi Co-operative Rural Bank Ltd. for availing a loan of Rs.5,00,000/- executing Ext. A6 mortgage deed. On account of the default committed by the plaintiff to repay the loan, the property was put in an auction sale on 21.11.2002. The defendant purchased the plaint schedule property in the said auction
In a suit for injunction, the plaintiff must prove possession as of the date of the suit; failure to do so results in dismissal.
The court held that a sale deed remains valid despite non-payment of consideration, affirming ownership rests with the purchaser as per registered transaction under the Transfer of Property Act.
A sale officer may proceed to sell a defaulter's properties other than mortgaged property in applying for debt recovery if suitable under the cooperative society's regulations.
Possession under Section 53-A of the Transfer of Property Act can be protected against third parties, even without a formal sale deed, if established through credible evidence.
Court can exercise its jurisdiction under Section 100 of the CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal.
Mandatory injunctions require clear evidence of possession rights; mere claims of permissive possession undermined by admissions establishing tenant status.
Only a decree holder can challenge possession under CPC; third parties lack standing, reaffirming principles of res judicata and validity in execution proceedings.
The Joint Registrar cannot require a No Objection Certificate for confirming a sale under the Kerala Co-operative Societies Act, as it is not mandated by law.
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