IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 14^TH DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 RSA NO. 74 OF 2024 AGAINST THE ORDER/JUDGMENT OS 43/2012 OF MUNSIFF MAGISTRATE, SULTHAN BATHERI AS 30/2020 OF ASSISTANT SESSIONS COURT/SUB COURT / COMMERCIAL COURT (KALPETTA), SULTHANBATHERY APPELLANT/S:

RAVINDRAN @ MANI AGED 62 YEARS S/O. GOPALAN, KOONAMAKKAL HOUSE, KOZHUVANA, TAZHATHOOR POST, NENMENI AMSOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN - 673595 BY ADVS.

R.K.PRASANTH K.G.BALASUBRAMANIAN AMBILY PREMKUMAR JIJO JOSEPH RESPONDENT/S:

1 RADHA AGED 70 YEARS W/O. LATE VISWANATHAN NAIR, PADIPARAMBIL HOUSE, KOZHUVANA, CHEERAL VILLAGE AND POST, NENMENI AMSOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN - 673595

2 BIJU AGED 47 YEARS S/O LATE VISWANATHAN NAIR, PADIPARAMBIL HOUSE, KOZHUVANA, CHEERAL VILLAGE AND POST, NENMENI AMSOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN - 673595

3 BIJOSH AGED 45 YEARS S/O LATE VISWANATHAN NAIR, PADIPARAMBIL HOUSE, KOZHUVANA, CHEERAL VILLAGE AND POST. NENMENI AMSOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN - 673595

4 BINDU AGED 50 YEARS D/O.LATE VISWANATHAN NAIR, KOUSTHOOBAM HOUSE, CHELAPRAM, MAKKADA, KAKKODI POST, KOZHIKODE DISTRICT, PIN - 673611 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

The defendants in O.S.No.43/2012 on the files of Munsiff Court Sulthan Bathery has filed this second appeal under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), challenging decree and judgment in the above case which were confirmed by the decree and judgment in AS 30/2020 dated

30.06.2023.

2. Heard the learned counsel for the appellant/ defendant on admission. Perused the verdicts under challenge.

3. In this matter, though it is argued by the learned counsel for the appellant/defendant that, in view of the earlier decree and delivery thereof, the remedy of the plaintiff is under Sec.47 of CPC and therefore the present suit is not maintainable, the Trial Court as well as the appellate Court negatived the contention.

4. In this matter, the plaint schedule property got assigned in favour of the plaintiff by virtue of document NO. 352/1984 of Sulthan Bathery SRO. While the plaintiff had been in the possession and enjoyment of the same, an agreement of sale had been executed in between plaintiff and defendant. Thus, the defendant occupied the plaint Schedule Property and continued possession. At this juncture, the plaintiff filed OS 73/1999 before the Munsiff Court, Kalpetta which was later transferred to Munsiff Court Sulthan Bhathery and re-numbered as OS 279/2011 and the suit was decreed on 30.03.2003. Thereafter the defendants approached Sub Court Sulthan Bathery and filed As No. 25/2005 along with delay petition of 631 days. When the Appellate Court dismissed the appeal, the matter was taken before this Court in RSA 1423/2013. As per the judgment in RSA, this Court set aside the judgment of the Trial Court and remanded the matter to the Trial Court for fresh disposal. The defendant again was set exparte and an exparte decree was passed. IA 1436/2006 was filed to set aside the exparte decree also Was dismissed. By long process, finally the decree was put in execution and as per A9, the delivery report of Amin in EP3/2005, delivery was affected and possession of the property was put back to the hands of plaintiff. The suit was necessitated since the defendants again trespassed into the property and dispossessed the plaintiff.

5. In this matter, it is an admitted fact that, there was a sale agreement in between the plaintiff and defendant. But the sale agreement in no way would confer any right upon the vendee and as per Section 55(6)(b) of the Transfer of Property Act the vendee would get a charge on the immovable property agreed to be sold, so as to realise the advance consideration, if any, paid. Fur