Case: SELVI Vs. GOPALAKRISHNAN NAIR (D) THR. LRS

No.123/9) and what was the basis on which the possession of the second defendant was upheld in the proceedings under Section 145 Cr.P.C. and in CRP No.45 of 1992.15. Both the trial court and the First Appellate Court appear to have rejected the objections raised by the second defendant mainly on the following grounds:-i. No appeal was preferred by the second defendant against the preliminary decree and therefore, second defendant cannot challenge the correctness of the preliminary decree in the final decree proceedings;ii. Second defendant has not raised the plea regarding his claim of ownership in Survey No.988; andiii. Application for passing final decree is pending for more than sixteen years16. As per Section 97 CPC, where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Of course, the second defendant has not filed the appeal against the preliminary decree challenging its correctness. But as pointed out by the learned counsel for the second defendant, in the description of the suit properties, Survey No.988 has not been shown. As pointed out by the High Court, in para No. (13) of the written statement, second defendant has clearly averred that he is the owner of the adjoining property in Survey No.988 in which the plaintiffs and the other defendants have no right and that the third defendant is residing in a building belonging to the second defendant in the said Survey No.988 on rental basis. In spite of the objections raised by the second defendant as to the boundaries and description of the suit properties and also claiming right in Survey No.988 stated to be falling within those boundaries, the plaintiffs have not amended the description of the suit properties by bringing in Survey No.988 in the suit property. It is in this context, in their written statement, the defendants have stated that ?the defendants have no objections to surrender the mortgage right in respect of Plaint B Schedule items…..?17. Be it noted that two Commissioners namely Mr. K. Ponniah and Mr. Ambrose earlier appointed have inspected the suit properties and filed their Reports stating that the suit properties are not identifiable. Only when Mr. Raveendran Nair, Advocate-Commissioner inspected the suit property, he has noticed that Survey No.988 is falling within the description of the boundaries stated in the Plaint. Since the description of the suit property did not contain Survey No.988, the fact that the second defendant did not prefer appeal against the preliminary decree, cannot be put against the second defendant. Though the High Court referred to the averments in the written statement as to the claim of second defendant in Survey No.988, the High Court did not go into the question as to the entitlement of second defendant and the confusion regarding the boundaries of the properties.18. In view of the stand taken by the second defendant that he is entitled to the adjoining property in Survey No.988 by virtue of the sale deed of the year 1951 and the consistent objections raised by him to the Commissioner?s Report, in our view, in the final decree proceedings, the trial court ought to have directed the parties to adduce evidence to enable the court to ascertain the truth as to the correct description of the suit property and also the right claimed by the second defendant in Survey No.988. We are conscious that the parties are fighting litigation for more than five decades; but in order to meet the ends of justice, in our view, the impugned judgment of the High Court and the courts below are liable to be set aside and the matter be remitted to the trial court for deciding the matter afresh.19. Before we close the matter, we feel it necessary to set at rest two issues. As pointed out earlier, Kalyani executed an agreement for sale on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai. Second plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and the said Rajayyan assigned the agreement in favour of third plaintiff-Selvi on 10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court and when the second appeal was pending before the High Court, second plaintiff Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court – District Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and denying the right of third plaintiff-Selvi to pursue the final decree application. The said Vasudevan Pillai alleged that he has never filed final decree application and that his signature was forged and he has not assigned his right either in favour of Rajayyan or in favour of third plaintiff-Selvi. Though the parties have advanced lengthy arguments on the said averments in the affidavit filed by Vasudevan Pillai; it is to be pointed out that the affidavit of Vasudevan Pillai is clearly an afterthought. In the final decree application I.A. No.120 of 1985, all the three plaintiffs have signed. In the final decree stage, the third plaintiff-Selvi got herself impleaded based on the assignment of right in her favour by Rajayyan who in turn got the assignment from the second plaintiff-Vasudevan Pillai. The third plaintiff-Selvi was pursuing the final decree application. Though the final decree application was pending before the trial court for more than sixteen years and thereafter in the First Appellate Court, Vasudevan Pillai has not raised any objection nor made any grievance against the third plaintiff-Selvi. Only when the second appeal was pending before the High Court, the second plaintiff-Vasudevan Pillai has chosen to file an affidavit before the court denying assignment of the right and raising plea of forgery. In our view, the stand of Vasudevan Pillai is clearly an afterthought and no weight could be attached to the averments in the affidavit.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. In view of the stand taken by the second defendant that he is entitled to the adjoining property in Survey No.988 by virtue of the sale deed of the year 1951 and the consistent objections raised by him to the Commissioner?s Report, in our view, in the final decree proceedings, the trial court ought to have directed the parties to adduce evidence to enable the court to ascertain the truth as to the correct description of the suit property and also the right claimed by the second defendant in Survey No.988. We are conscious that the parties are fighting litigation for more than five decades; but in order to meet the ends of justice, in our view, the impugned judgment of the High Court and the courts below are liable to be set aside and the matter be remitted to the trial court for deciding the matter afresh.19. Before we close the matter, we feel it necessary to set at rest two issues. As pointed out earlier, Kalyani executed an agreement for sale on 27.12.1968 in favour of secondPillai. Second plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and the said Rajayyan assigned the agreement in favour of thirdon 10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court and when the second appeal was pending before the High Court, second plaintiff Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court – District Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and denying the right of thirdto pursue the final decree application. The said Vasudevan Pillai alleged that he has never filed final decree application and that his signature was forged and he has not assigned his right either in favour of Rajayyan or in favour of thirdThough the parties have advanced lengthy arguments on the said averments in the affidavit filed by Vasudevan Pillai; it is to be pointed out that the affidavit of Vasudevan Pillai is clearly an afterthought. In the final decree application I.A. No.120 of 1985, all the three plaintiffs have signed. In the final decree stage, the thirdgot herself impleaded based on the assignment of right in her favour by Rajayyan who in turn got the assignment from the secondPillai. The thirdwas pursuing the final decree application. Though the final decree application was pending before the trial court for more than sixteen years and thereafter in the First Appellate Court, Vasudevan Pillai has not raised any objection nor made any grievance against the thirdOnly when the second appeal was pending before the High Court, the secondPillai has chosen to file an affidavit before the court denying assignment of the right and raising plea of forgery. In our view, the stand of Vasudevan Pillai is clearly an afterthought and no weight could be attached to the averments in the affidavit.