FREEMASON LODGE AND ORS. Vs. RAMAN AND ORS.

JUDGEMENT

(1.) One Mabella Williams was owner of 60 cents of land and the buildings thereon. On 31.3.1993 by Ext B1 sale deed she sold a portion of it to the first respondent. There are two items of properties in it. Item No.2 is the first floor of a building and the undivided land on which the building is situated. Ten months later, by Ext A1 sale deed, she sold 5.879 cents with the building thereon to the first appellant of which the second appellant is the secretary. The first respondent claimed that the building in respect of which Ext A1 was executed is the one the first floor of which with the undivided right in the land which was already sold to him by Ext B1 sale deed earlier. The first respondent along with the second respondent put up a staircase in the property. The appellants also put up a staircase. The property to which both parties claim title is hereinafter called the disputed property. According to the appellants, Mabella did not intend to transfer the disputed property to the first respondent and Ext B1 sale deed does not prove transfer of it to the first respondent. The appellants filed the suit for a perpetual injunction prohibiting the respondents from trespassing into the property covered by their Ext A1 sale deed which is the plaint schedule property and for a mandatory injunction directing them to remove the staircase put up by them in the disputed property. The respondents made a counter claim praying for a perpetual injunction prohibiting the appellants from trespassing into the disputed property and for a mandatory injunction directing the appellants to demolish and remove the staircase put up by them. The trial court dismissed the suit and allowed the counter claim. In A.S.No.56 of 2003 the decree was confirmed.

(2.) The courts below held that the disputed property belongs to the first respondent as it is a subject matter of the sale evidenced by Ext B1 sale deed executed in his favour and on the transfer of title to him the transferor could not have given title to the first appellant. To enter the finding the courts below relied on the oral evidence also of the transferor, who was examined as DW3.

(3.) This court formulated three substantial questions of law for hearing.