Full Judgment Text
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PETITIONER:
NELLIKKOTTU KOLLERIYIL MADHAVI
Vs.
RESPONDENT:
KAVAKKALATHIL KALIKUTTY & ORS.
DATE OF JUDGMENT: 29/11/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises from the judgment
and decree of the Kerala High Court dated May 24, 1993, made
in SA No. 368 of 1989. The respondents had purchased the
Plaint Schedule property in execution of the decrees in OS
No. 262/1955 on the file of the Court of the District
Munsiff, Parappanangadi. The sale certificate, Exh. A-2
dated January 28, 1958 was given to the respondents. They
had also filed and application for delivery of possession of
the property which had come to be delivered under Ex. A-3
dated 21.7.1963. After taking delivery of the possession on
October 20, 1961, they assigned the Plaint Schedule property
to the plaintiff. Under those circumstances, the question
arises; whether they are entitled to a decree of perpetual
injunction restraining the appellant from interfering with
his possession? Though the trial Court and the appellate
Court had accepted the case of the appellant, the High Court
has pointed out that aforesaid documents are material for
deciding the controversy and the courts below had not
considered those documents in proper perspective.
Accordingly, in second appeal, the High Court has gone into
that question. It is settled law that the person who
purchases the property in a court auction sale, gets title
to the property by sale certificate issued by the court as
true owner and after confirmation of the sale, he gets
possession thereof. In view of the fact that Plaint Schedule
property was delivered to Sankaran under Ex. A-3 on July 21,
1961, he lawfully came into possession and the same was
delivered in turn to the plaintiffs. Non-consideration of
the material evidence is a substantial question of law.
Under these circumstances, the perpetual injunction
granted by the High Court in the second appeal is not
vitiated by any error of law much less substantial question
of law warranting interference. The appeal is accordingly
dismissed. If the appellant has got any title independent of
this, it is open to him to have the right established in
accordance with law.
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