IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 RFA.No. 562 of 2009() --------------------- OS.673/2006 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. MRS.LEENA JOHNSON, W/O.JOHNSON JOSEPH, AGED 49 YEARS, C.C.NO.44/1467, VADAKKETHARAYIL, ASHOKA ROAD, KALOOR P.O., KOCHI - 17. 2. JOHNSON JOSEPH, S/O.JOSEPH JOHN, C.C.NO.44/1467, VADAKKETHARAYIL, ASHOKA ROAD, KALOOR P.O., KOCHI - 17. BY ADV. SRI.JOHN JOSEPH(ROY) RESPONDENT(S): PLAINTIFF ------------------------ MARIAMMA BABY, AGED 62 YEARS, D/O.VARKEY PAULOSE, PADAYATTIL HOUSE, KOZHIKOTTUKULANGARA, VENGOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM. BY ADV. SRI.P.R.MILTON SRI.K.J.CHACKOCHAN THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- C.M.Appln.No.1542 OF 2009 & R.F.A.No.562 OF 2009 ------------------------------------ Dated this the 9th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. C.M.Appln.No.1542 OF 2009 Heard. The application for condonation of delay of 267 days in filing the appeal is sought to be sustained on the ground of dismissal of the application for certified copy of the decree and judgment on account of non remittance of balance court fee. We are satisfied that sufficient ground has been shown to condone the delay. This application is allowed. R.F.A.No.562 OF 2009 1. The appeal is admitted. Heard learned counsel for parties. RFA.562/09 2 2.This appeal arises from a suit for partition. The two defendants are the appellants. 3.It is not in dispute that Ext.A1 sale deed was taken by the plaintiff and the first defendant; the plaintiff getting 2/3rd share in the suit property, which is a small parcel of 4.05 cents in Kaloor, Ernakulam. It appears even from the pleadings of the plaintiff that there upon, there was an offer to put up a multi-storied building on that plot and that the plaintiff had issued some cheques for such purpose to the first defendant, which were later instructed to be stopped from payment, by her notifying the banker to that effect since she had reasons to suspect the intention of the defendants. Incidentally, we may also notice that the transferor of the plaintiff and the first defendant under Ext.A1 is the mother of the second defendant. 4.The trump card of the defendants is the so-called agreement and transactions founded on the understanding to make RFA.562/09 3 construction of a building, which, in our view, is no answer, in law, to the eligibility of the plaintiff to partition and have her share due under Ext.A1 separately alloted. The title of the plaintiff and the first defendant to the suit property on the basis of Ext.A1 is not under challenge, though the defendants would contend that the said sale deed was on the understanding that a building would be constructed. Obviously, if there is any such agreement on which the defendants have a legal right for enforcement or for other reliefs, it is for them to work out such remedies. We do not see there any such proceeding has been initiated until now. We also do not see any counter claim in this litigation. At any rate, in law, the suit for partition as laid cannot fall on the pleadings raised by the defendants. For the aforesaid reasons, we are inclined only to sustain the decree for partition. 5.Yet, we find that the court below has granted the decree also for recovery of Rs.1,000/- per mensem from 7.11.2006, the RFA.562/09 4 date of Ext.A3 notice, by way of proportionate share of income from the suit property till delivery of possession of the 2/3rd right of the building from both the defendants. This is unsustainable as it is illegal, unjust and not supported by the materials on record. Even in terms of Ext.A1, it is the clear recital that in furtherance of that document, the plaintiff and the first defendant were put in possession. The plaint also does not disclose any subsequent dispossession of the plaintiff. We may read the term in Ext.A1 to the following effect: “Õµµæ{ÜïÞ¢ ÏÞæÄÞøá ÌÞicÄÏá¢ ÈcâÈÄÏá¢ §ÜïÞçÄ È¿Jß ÈßBZAá èµÕÖ¢ ÄKßøßAáKá” This, obviously, means that the plaintiff is also in actual possession of the share that was alloted to her jointly, such possession being joint with the first defendant. Under such circumstances, there was no ground to grant any relief as is contained in clause 3 of the impugned decree. It is liable to be vacated. RFA.562/09 5 6.We are not impressed by the argument on behalf of the plaintiff that a commissioner who visited the premises had noted that the first defendant is in exclusive possession of the property. It is not for the commissioner who makes a local inspection in terms of Section 75 CPC to state as to who is in possession. More importantly, as already noted, Ext.A1 itself is categoric to the effect that the plaintiff and the first defendant are in joint possession, pursuant to the transfer made by the transferor in their favour. The plaintiff also has no case that she was dispossessed, to the extent of her interest under Ext.A1, at any time after the said document. 7.Before parting, we clarify that we have not expressed anything on the merits of the rival contentions in connection with the so called agreement between the parties regarding construction etc. RFA.562/09 6 In the result, this appeal is allowed to the limited extent of vacating clause 3 of the impugned decree. The impugned judgment and decree will stand modified accordingly. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.13/6.