IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 FAO.No. 260 of 2006() --------------------- AGAINST THE ORDER DATED / / IN IA 1831/05 IN OS.187/2005 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/PETITIONER/PLAINTIFF: --------------------------------------------------- M/S. CHINTHALAYA PROPERTIES AND FINANCE (PARTNERSHIP FIRM), REP. BY ITS PRESENT MANAGING PARTNER, V.R. SAJIT, OFFICE AT POONKUNNAM DESOM, THRISSUR VILLAGE & TALUK. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------- 1. K.P. NARAYANI, KOOVIYIL PURAYIL HOUSE, KATCHERI, KOZHIKODE. 2. K.P. PRABHAKARAN, KOOVIYIL PURAYIL HOUSE, KATCHERI, KOZHIKODE. 3. K.P. BHARATHAN, KOOVIYIL PURAYIL HOUSE, KATCHERI, KOZHIKODE. ADV. SRI.M.P.SREEKRISHNAN FOR R3 SMT.SHAHNA KARTHIKEYAN FOR R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 260 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of July, 2009. JUDGMENT Bhavadasan, J, The plaintiff in O.S. 187 of 2005 before the Additional Sub Court, Kozhikode, who failed in his attempt to prevent the respondents from getting a final decree passed in a partition suit is the appellant. 2. The plaint schedule property is a portion of a larger item of property that belonged to one Korukutty. According to the plaintiff, Korukutty executed a will, by which he bequeathed the entire property to defendants 4 to 7. The item was shown as item 1 of C schedule in the will. The said defendants obtained purchase certificate from the Land Tribunal. By mortgaging the said property, they obtained a loan from the plaintiff claiming right over the property on the basis of the will. When the debtors failed to repay their debts, on their offer, the plaintiff purchased the plaint schedule FAO.260/2006. 2 property. Plaintiff has put up a building therein. To the dismay of the plaintiff, in May, 2005 Commissioner appointed by the court inspected the property. When the plaintiff made enquiries, he came to know that defendants 1 to 3 had filed O.S.170 of 1995 for partition claiming rights over the suit property as legal heirs of Korukutty. A preliminary decree had been passed and final decree proceedings have been initiated. The plaintiff alleged that O.S. 170 of 1995 was a fraudulent and collusive suit in order to defeat the right of the plaintiff and it was not binding on the plaintiff. In the light of the will of Korukutty, according to the plaintiff, defendants 1 to 3 were not entitled to any share in the property. Along with the suit, the plaintiff also filed I.A. 1831 of 2005 seeking to have the defendants restrained from proceeding with the final decree proceedings. 3. The petition was resisted by the respondents. Respondents 1 to 3 pointed out that the plaintiff had no cause of action against them and the claim of the plaintiff is without any FAO.260/2006. 3 basis whatsoever. They therefore prayed for dismissal of the petition. 4. For the purpose of the interlocutory application, the court below had Exts. A1 to A7 marked. 5. On a consideration of the materials before it, the court below found that the plaintiff was not entitled to any relief and dismissed the interlocutory application. The said order is assailed in this appeal. 6. Learned counsel appearing for the appellant pointed out that the court below was not justified in dismissing the petition. According to counsel, the court below ought to have seen that defendants 4 to 7 in the partition suit had acquired absolute rights over the property by the will of Korukutty, and defendants 1 to 3 had no manner of right whatsoever over the suit property. O.S. 170 of 1995 was a collusive suit by defendants 1 to 3 on the one hand and defendants 4 to 7 on the other to defeat the right of the plaintiff. The plaintiff was deliberately kept in the dark regarding FAO.260/2006. 4 the said suit. Learned counsel pointed out that the decree in the partition suit was not binding on the plaintiff and that he is entitled to an injunction as prayed for. 7. Learned counsel appearing for the respondents on the other hand pointed out that the court below was fully justified in dismissing the petition. The plaintiff, which is a financing firm ought to have seen that the property belonged to Korukutty and consequent on his death, all his legal heirs had right in the property. It is pointed out that the claim based on the will cannot succeed, since the will had not been produced in the proceedings. The plaintiff cannot be heard to say that since there was a will, defendants 1 to 3 before the court below cannot claim any manner of right. The court below was therefore perfectly justified in coming to the conclusion that the plaintiff was not entitled to any relief. 8. There is no dispute regarding the fact that the property originally belonged to Korukutty. There is also no FAO.260/2006. 5 dispute regarding the fact that the respondents before the court below were the legal heirs of Korukutty. It is seen from the records that there were several litigations between the parties, ie. defendants 1 to 7 and others. The court below has made mention of several of those proceedings. It is seen that the will made mention of in the suit was also put in issue. 9. It is seen from the order of the court below that some of the suits between the parties were settled and in the partition suit, that is O.S.170 of 1995, a preliminary decree had been passed. Proceedings for the final decree are pending. 10. The claim of the plaintiff that it is on the basis of the will that they had purchased the property from defendants 4 to 7 does not advance their case much. There is nothing to indicate that the will has been accepted by any court. The plaintiff ought to have seen that the defendants 4 to 7, from whom, they purchased the property had only a fractional share over the property. They had no claim that they were unaware of the fact that there are other FAO.260/2006. 6 legal heirs to Korukutty. 11. It appears that there was another suit as O.S. 68 of 1973, which was also a suit for partition, in which the plaint schedule property herein was also involved. In the said suit, defendants 1 to 3 were alloted the residential building and another building was allotted to respondents 4 to 7. There was yet another suit by respondents 4 to 7 for partition of Kerala Bhavan Lodge. However that suit was later not prosecuted. It could thus be seen that the property is involved in a number of proceedings and the claim of the plaintiff that firm was unaware of the same cannot easily be accepted. 12. At best what the plaintiff would claim is that the share that is to be set apart to defendants 4 to 7 should be that portion, which was sold to the plaintiff. The attempt of the plaintiff to deny the fruits of the final decree proceedings cannot be countenanced. Whether the plaintiff can get any relief in the partition suit between defendants 1 to 3 and defendants 4 to 7 is FAO.260/2006. 7 matter, which need not be gone into in this proceedings. At any rate, the attempt of the plaintiff to forestall the partition suit cannot be accepted. One needs to note that the partition suit is of the year 1995 and it is after a long drawn out battle that the plaintiffs in the suit, namely, defendants 1 to 3, have been able to get a decree in respect of the suit property. It is considering these facts, the court below dismissed the petition. No grounds are made out to interfere with the order of the court below. This appeal is without merit and it is accordingly dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.