The court established that without a registered title, claims of ownership and adverse possession are invalid and that formal consent is essential for transfer of property rights.

JUDGMENT

R.F.A. No.124 of 2017 arises from O.S. 570/2011. The plaintiff in the suit is the appellant. The suit is one for declaration of title, for setting aside a sale deed and for injunction against trespass.

2. RFA 126/2017 arises from OS 307/2011. The defendant in the suit, who is the plaintiff in OS 570/2011, is the appellant. The suit is one for recovery of possession on the strength of title and for damages for use and occupation. The plaintiffs in OS 307/2011 are the defendants 5 to 7 in OS 570/2011. The trial court dismissed OS 570/2011 and decreed OS 307/2011.

3. Plaintiffs 1 and 2 in OS 307/2011 are the wife and son of late A.E.Thomas. The defendant in OS 307/2011, who is the plaintiff in OS 570/2011 is the niece of late A.E. Thomas (his sister Rosaline Sebastine's daughter). The additional third plaintiff in OS 307/2011, who is the additional 7th defendant in OS 570/2011 is a transferee pendente lite from plaintiffs 1 and 2 in OS 307/2011.

4. For the sake of convenience, the first plaintiff in O.S.307 of 2011 is hereinafter referred to as, “the plaintiff”, and the plaintiff in O.S.570 of 2011 is referred to as, “the defendant”.

5. A.E.Thomas was at Bombay. His sister-Rosaline Sebastian was at Ernakulam. Sri.A.E.Thomas booked for an apartment at Ernakulam in a project of the Kerala State Housing Board (defendants 1 to 4 in OS 570/2011). Since he was at Bombay, all the dealings regarding the purchase was through his sister Rosaline. Ext.A3 dated 03.11.1987 is the allotment letter issued by the Housing Board to Sri.A.E.Thomas. For going ahead with the transaction, Sri.A.E.Thomas executed Ext.B2 Power of Attorney dated 05.06.1989 in favour of his sister Rosaline.

6. It is the case of the defendant that, in course of time, during the year 1996, Sri.A.E.Thomas decided not to come back to Ernakulam and agreed to transfer the apartment to his sister Rosaline's daughter (niece of A.E.Thomas) namely, the defendant. Necessary steps in the said regard were taken. The documents as was required by the Housing Board, to enable transfer including payment of transfer fee and purchase price were complied with by Rosaline and the defendant as early as on 11.04.1996. However, the Housing Board failed to execute the sale deed. The defendant made repeated requests to the Housing Board for execution of the sale deed which were not headed to. Finally the Housing Board as per Ext.A12 letter dated 06.12.1996 intimated the defendant that the transfer cannot be effected since the original allottee has refused consent for transfer. As per the directions of this Court in W.P.(C) No.16668/2009 the Board considered the request of the plaintiff but, declined the request. The appeal preferred before the appellate authority was also rejected. In the meanwhile, the Housing Board executed Ext.A1 Sale Deed dated 16.11.2010 in favour of the plaintiff (the first plaintiff in OS 307/2011) who is the wife of late A.E. Thomas. It is thereafter that the suit O.S.570/2011 has been filed by the defendant. The defendant claims that there is a concluded transfer in her favour on payment of the transfer fee. There is also an alternate claim of adverse possession. In the suit, relief is claimed to set aside Ext.A1 Sale Deed, declare the title of the defendant (plaintiff in OS 570/2011) and for prohibitory injunction against trespass. In OS 307/2011 the plaintiff seeks for recovery of possession on the strength of title and damages for use and occupation.

7. The trial court held that there was no completed transfer of the rights of A.E.Thomas in favour of the defendant (plaintiff in OS 570/2011), and that Ext.B2 power of attorney did not em