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

2. Brief facts as seen from the Plaint averments are as follows:(Rs.109.04). The mortgage was an usufructuary with Kuzhikkanam for a period of twelve years. While Kutti Bhagvathi was enjoying it, she assigned her mortgage right to Eravi Pillai Parvathi Pillai from whom Parameswaran Pillai of Kavavilai got an assignment under deed No.1231 of 1107 and came into possession. Parameswaran Pillaiportion of Plaint B Schedule property to Kesava Pillai Narayana Pillai which right has become vested in the second Defendant. The fourth Defendant has also right in the suit mortgage. The third Defendant has also right in the suit mortgage. The third Defendant has leasehold right over some portion of B Schedule property under Parameswaran Pillai. The first Defendant is in possession of A Schedule property as the heir of the deceased assignee mortgagor Parameswaran Pillai. The mortgagors 1 and 2 died and their right devolved on the legal heirs of mortgagorsKalyani Pillai and her mother Lakshmi Pillai. The first PlaintiffKalyani Pillai inherited the equity of redemption of the plaint property on the death of her mother Lakshmi Pillai. The first Plaintiff is thus the mortgagor by derivative title who is entitled to redeem the mortgage from Defendant Nos.1 to 4. In so far as her mortgage rights, the firstPillai executed an agreement of sale on 27.12.1968 in favour of the second PlaintiffVasudevan Pillai with respect to the mortgage property and as such he has joined as the second Plaintiff. Suit Properties within the stated boundaries are said to be situated in respect of A Schedule property in Survey numbers 990extent of 85 cents and Survey No.983/12A1 acre and 35 cents; Survey No.983/13A5 acres 96 cents and Survey No.983/14A – 0.64 acres in respect of B schedule property.3. Thedefendant who is the main contesting defendant resisted the suitcontending that he is in possession of Survey No.983/14A for which the appellants/plaintiffs have no right of possession. The secondia further pleaded that the property in old Survey No.988 belongs to him and the third defendant is residing in a building situated in Survey No.988 on rental basis.4. The parties went for trial. Upon consideration of evidence, the trial court passed the preliminary decree for partition on 07.08.1976 holding that thePillai and Vasudevan Pillai are entitled to redeem and recover possession of 7.40 acres from defendant Nos.1 to 4 by depositing of mortgage money of Rs.109.81Paise. The trial court passed the preliminary decree for partition to the said extent of 7.40 acres in the suit property to which the plaintiffs are entitled for partition and separate possession.5. First plaintiffKalyani Pillai executed an agreement for sale on 27.12.1968 in favour of the secondPillai. The secondPillai assigned the above said agreement in favour of one Rajayyan on 05.08.1978 and the said Rajayyan assigned that agreement in favour of thirdwife of Devaraj on 10.03.1983. In the final decree proceedings, third plaintiffSelvi got herself impleaded in the suit by filing a separate petition. All the three plaintiffs filed final decree application in I.A. No.120 of 1985 in OS No.1516 of 1969. The trial court by its judgment dated 19.09.2001 passed the final decree for partition holding that Survey No.988 which the second defendant claims cannot be exempted from the suit property. In the final decree, the trial court held that the appellant/plaintiff is entitled to the portion as ?ABCDEFXVUTSRQKLMNOP? marked in Exhibit C.2, entitled to the possession and that the plaintiffs are entitled to redeem the suit property. The Court further directed that the legal heirs of thirdPillai are entitled to get a sum of Rs.2,64,607.50 as development charges of the suit property.6. Being aggrieved by the final decree, the second defendant Gopalakrishnan Nair preferred an appeal in AS No.6 of 2002 on the file ofKuzhithurai. The First Appellate Court dismissed the appeal vide its judgment dated 20.08.2004 holding that no appeal had been preferred from the preliminary decree dated 07.08.1976 by the second defendant and that he cannot challenge the correctness of the preliminary decree in the final decree proceedings. The First Appellate Court confirmed the final decree passed by the trial court and dismissed the appeal observing that Gopalakrishnan Nair cannot have any valid objection for the final decree in favour of the plaintiffs.7. Being dissatisfied with the concurrent findings, the first respondent preferred appeal in SA No.255 of 2005 before Madras High Court at Madurai Bench. The High Court proceeded to hold that the first respondent/second defendant in his written statement raised a plea of ownership in respect of Survey No.988 and that by its order dated 27.04.1998, the trial court also directed exclusion of the property in Survey No.988. After referring to the order of the trial court dated 27.04.1998 and the Commissioners Report, the High Court held that the suit property in the preliminary decree does not cover Survey No.988 and was removed from the ambit of the suit property by the trial court and on those findings, the High Court allowed the second appeal. The High Court held that the final decree will stand as it is, excluding Survey No.988. Being aggrieved, the appellant/plaintiff is before this Court.Mr. Raveendran Nair,was appointed to measure the suit properties according to the boundaries contained in the documents filed in the suit namely Exts. A.1, A.2, B.1, B.2 and to locate the properties contained in the Survey numbers 990,and 988. In the said order dated 27.04.1998, the trial court directed exclusion of Survey No.988 as seen from thehe is directed that after measuring and locating the suit properties viz., in Survey No.990 andand the second defendant?s property which is situated in Survey No.988, the Commissioner may allot the plaintiff?s share of 7 Acres 40 cents both in Survey No.990 and 983 or in any of the above two survey numbers….The Commissioner filed its Preliminary Report on 17.02.1999, for which the secondNair filed detailed objections stating that the Commissioner, while locating Survey No.988, did not follow the boundary descriptions contained in the documents. Relevant portion of the objections filed by the secondThe Commissioner did not locate the Plaint Schedule survey numbers i.e., Survey Nos.990 and 983 and the other Survey Number 988 as directed by this Hon?ble Court.5. The Commissioner failed to understand that a partition is impossible in this suit without locating the plaint schedule survey numbers 990 and 983.6. It is seen from the report of the Commissioner that he is more particular and interested in locating Survey No.988 alone just to confuse matters. The various documents filed by this Defendant relating to his title to Survey No.988 and ignored by the Commissioner. While locating Survey No.988, the Commissioner did not follow the descriptions contained in the ancient documents filed by this defendant before this Hon?ble Court. But he simply followed documents for bits of land brought into existence after the suit and registered in Kerala at the instance of the Plaintiff.8. …..This Thottampara Nilam lies west of the road and comprised in Survey No.1025. The portion lies west of the road also forms part of Survey No.988. The portions shown as Thottampara Nilam and Muriyaravilakam are also portions of Survey No.988. The Commissioner did not locate the southern limit of Survey No.988…… …..Based on the objections filed by the second defendant,Mr. Raveendran Nair,revisited the property and filed his Report noticing Survey No.988 falls within the description of the suit properties. The relevant portion of the Report of the Commissioner dated 26.04.1999 reads asthe Hon?ble Court appointing me as Commissioner, it is specifically ordered to exclude old Survey No.988. Since it belongs to second defendant, when this plot is excluded from partition the share of the plaintiff will come in file No.123/5, 6, 535/1, 2, 535/4 and the Plot B, B1, B2 and B3.The old survey number of the properties are 983/12, 13, 14 and 988 of Mancode Village. Out of the above survey numbers, the plaintiff is entitled on the basis of boundaries the plot shown A,B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,A, is the plot having an area of 7 Acres 40 Cents.i filed detailed objections to the Commissioner?s Report stating that Survey No.988 cannot be excluded from the properties to be partitioned. SecondThe Commissioner has wrongly shown ‘B? Schedule Property inclusive of the whole by Survey Nos.988 without identifying the suit properties i.e. Survey Nos.983A and 990. Old Survey No.988 correlates to R. Survey No.123/9 having an extent of 3 Acres 39 Cents in the exclusive property of this defendant which is not available to a partition. In this aspect, the Commissioner has not even taken note of the various documents filed by this defendant.5. The Commissioner exceeded his authority in allotting the share of the plaintiff inclusive of the whole Survey No.988 while this Hon?ble Court specifically directed him to allot the share of the plaintiff in Survey Nos.983A and 990 or in any of the both.6. Paragraphs 5 and 6 of the report of the Commissioner are mutually conflicting. Paragraph 6 of the report is totally in conflict with the plan showing the allotment. Plots B1 and B2 shown by the Commissioner in his plan explicitly come within Survey No.988. So, the allotment of the share of the plaintiff inclusive of Survey No.988 is totally against the spirit of the order of this Hon?ble Court dated 27.04.1999. Such an allotment totally deprives the exclusive right of this defendant over Survey No.988. ….?

Reasoning:
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.