Kerala High Court
Jayasree vs Prabhakaran Pillai on 13 September, 2012
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938
FAO.No. 360 of 2012 ()
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AGAINST THE JUDGMENT AND DECREE DATED 13.09.2012 IN CROSS APPEAL IN AS
NO.52/2008 of SUBORDINATE JUDGE'S COURT,KOTTARAKKARA
AGAINST THE ORDER DATED 19.02.2008 IN IA NO.786/1993 IN OS NO.159/1982 of
MUNSIFF'S COURT, PUNALUR
APPELLANT/RESPONDENT NO.1/PLAINTIFF:
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JAYASREE, W/O K.RAVEENDRANATHAN NAIR,
JAYAVILAS, PANAYANCHERRY, ANCHAL P.O., KOLLAM-691 306.
BYADV. SRI.KALEESWARAM RAJ
RESPONDENTS/APPELLANTS/RESPONDENTS 2 TO 10/DEFENDANTS:
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1. PRABHAKARAN PILLAI, S/O GOPALA PILLAI, CHAMAKKALAVEEDU,
PANAYAMCHERI MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK,
KOLLAM-691 306.
2. MAYA DEVI, W/O PRABHAKARAN PILLAI, CHAMAKKALAVEEDU,
PANAYAMCHERI MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK,
KOLLAM-691 306.
3. RADHAMONY AMMA, ASWATHY BHAVAN FROM JAYAVILASOM
PANAYAMCHERI MURI, ANCHAL P.O.,PATHANAPURAM TALUK,
KOLLAM-691 306.
4. THAHIRA IBRAHIM, REJI MANZIL, THAZHAMEL, ANCHAL,
PATHANAPURAM TALUK, KOLLAM-691 306.
5. FAZALUDEEN, S/O SULAIMAN KUNJU-BEEVI KUNJU, PUTHENVEETTIL,
THEKKETHIL, VAZHIYAMBALAM JUNCTION, IRAYAKKOVIL ROAD,
ASHRAMAM MURI, KOLLAM DIST., PIN-691002.
6. NOORUDEEN, PUTHEN VEETTIL, THEKKETHIL, VAZHIYAMBALAM JUNCTION,
IRAYAKKOVIL ROAD, ASHRAMAM MURI, KOLLAM DIST, PIN-691002.
7. JALALUDEEN, PUTHEN VEETTIL THEKKETHIL, VAZHIYAMBALAM JUNCTION,
IRAYAKKOVIL ROAD, ASHRAMAM MURI, KOLLAM DIST., PIN-691002.
8. SAFIYA, PUTHEN VEETTIL THEKKETHIL, VAZHIYAMBALAM JUNCTION,
IRAYAKKOVIL ROAD, ASHRAMAM MURI, KOLLAM DIST., PIN-691002.
9. NAZAR, PUTHEN VEETTIL THEKKETHIL, VAZHIYAMBALAM JUNCTION,
IRAYAKKOVIL ROAD, ASHRAMAM MURI, KOLLAM DIST.
FAO NO.360/2012 2
10. NAZEEMA, PUTHEN VEETTIL THEKKETHIL, VAZHIYAMBALAM JUNCTION,
IRAYAKKOVIL ROAD, ASHRAMAM MURI, KOLLAM DIST., PIN-691002.
11. KAMALUDEEN, PUTHEN VEETTIL THEKKETHIL, VAZHIYAMBALAM JUNCTION,
IRAYAKKOVIL ROAD, ASHRAMAM MURI, KOLLAM DIST., PIN-691002.
R1 & R2 BYADV.SRI.G.S.REGHUNATH
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
11-11-2016, ALONG WITH FAO(RO) NO. 361/2012, THE COURT ON 28.11.2016 DELIVERED
THE FOLLOWING:
A.HARIPRASAD, J.
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F.A.O. No.360 of 2012
&
F.A.O.(RO) No.361 of 2012
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Dated this the 28th day of November, 2016
COMMON JUDGMENT
These appeals are against an order of remand, made by the lower appellate court, after hearing an appeal and a cross-objection. As common questions of fact and law arise in these appeals, they are disposed by this common judgment.
2. Heard Sri.Kaleeswaram Raj, learned counsel for the appellant and Sri.G.S.Reghunath, learned counsel for the contesting respondents.
3. These appeals relate to a final decree proceedings. The suit is one for partition. Trial court originally dismissed the suit. An appeal was preferred before the Sub Court, Kottarakkara, as A.S.No.93 of 1985. The first appellate court allowed the appeal and passed a preliminary decree, allotting 13/80 shares over the plaint schedule property to the plaintiff. In the final decree proceedings, the commissioner filed a report and plan. A building situated in the partible property, said to be constructed by the defendants 4 and 5, was valued by a competent engineer. By order dated 03.11.2007 the trial court found that the building was partible. Against that order, contesting respondents preferred W.P.(C) No.33662 of 2007 before F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 2 this Court. In that proceedings, this Court directed the trial court to decide the question of partibility of the building after taking evidence. Finally, the trial court, on 19.02.2008, passed an order on the final decree application, viz., I.A.No.786 of 1993, which is the subject matter in appeal before the lower appellate court. The lower appellate court, for specific reasons, found that there are serious mistakes in the order passed by the first court and ordered to remit the same for a proper consideration.
4. In the appeal before the lower appellate court, a cross objection was filed by the appellant/plaintiff, which was not fully allowed. Hence she has preferred these two appeals.
5. Sri.Kaleerswaram Raj submitted written notes showing the chronology of important events. Sri.G.S.Reghunath also submitted notes. The appellant/plaintiff filed the suit for partition (O.S.No.159 of 1982) before the Court of Munsiff, Punalur. Even going by the plaint averments, the total extent of property partible was one acre. On 23.03.1985 the suit was dismissed. A.S.No.93 of 1985 was preferred before the Sub Court, Kottarakkara against that judgment and decree. Along with the appeal, I.A.No.971 of 1985 was filed seeking an injunction against defendants 2 and 3 in the suit from alienating the plaint schedule property. The lower appellate court passed an ad interim order of injunction prohibiting the respondents from alienating the property and the order was duly F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 3 communicated to them. Later, on the same application, on 25.11.1991, the court passed an order restraining alienation and committing waste in the plaint schedule property. That was also intimated to the parties affected by the order. On 02.04.1992, as per order on I.A.No.345 of 1992 in the above first appeal, the lower appellate court recorded the submission of the 3rd respondent that no waste would be committed in the property and therefore the petition was closed, accepting the undertaking. Later, on 17.02.1993, a preliminary decree was passed in the suit as per the judgment and decree in A.S.No.93 of 1985. The appellant/plaintiff was found to be entitled to 13/80 shares in the plaint schedule property. On 06.04.1993, I.A.No.239 of 1993 was filed for initiating action against defendants 2 and 3 for execution of Exts.B1 and B2 documents dated 28.02.1993 in violation of the order of injunction. By these documents, the properties were alienated by the defendants 2 and 3 to the contesting respondents.
6. On 24.06.1993, I.A.No.786 of 1993 was filed by the appellant before the trial court for passing a final decree. The contesting defendants in the suit had preferred a second appeal, viz., S.A.No.385 of 1993 before this Court against the judgment and decree in A.S.No.93 of 1985. This Court later dismissed the second appeal. Admittedly the decree for partition has become final now.
7. It is the contention of the appellant that she filed O.S.No.142 of F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 4 1998 before the trial court against the contesting respondents and the 2nd defendant in this suit, seeking a prohibitory injunction from alienating the property and to restrain the contesting respondents from making any construction in the plaint schedule property. As per order on I.A.No.826 of 1998 in O.S.No.142 of 1998, the Munsiff's Court ordered a temporary injunction against alienation and construction of structures in the property.
8. In the meantime, Civil Appeal No.11500 of 1996 was preferred by the 2nd defendant in O.S.No.159 of 1982 before the Supreme Court, against the judgment and decree of this Court in S.A.No.385 of 1993. In that matter, the apex Court stayed the order passed by the lower court to the extent of preventing any construction on the land in question. The order against alienation was not disturbed. Ultimately, on 27.08.2003, the said Civil Appeal was also dismissed by the Supreme Court confirming the judgment in the second appeal. It is seen that two writ petitions were filed by the parties before this Court seeking police protection. Those were disposed of with certain directions, which may not be very much relevant for the purpose of this case.
9. Meanwhile, the respondents 1 and 2 filed a written statement in O.S.No.142 of 1998 stating that the building constructed by them is outside the plaint schedule property. Ultimately, O.S.No.142 of 1998, preferred by the appellant, was dismissed for default on 31.03.2003. On F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 5 08.12.2003, the final decree application was also dismissed for default. Subsequently it was restored to file. On 08.07.2004, the first commissioner was appointed as per order on I.A.No.786 of 1993 in the final decree proceedings and he filed a plan and report excluding the house in the plaint schedule property from partible assets. The appellant filed objection against the report. On 16.12.2004, the trial court set aside this report as per order on I.A.No.1262 of 2004. Subsequently, on 17.10.2005, another commissioner was appointed in the final decree proceedings. He submitted a plan, report and account showing the house in the plaint schedule property as a partible item. Value of the house assessed was `1,66,012/-. The quantum of share of profit (in the pleadings as well as in the judgments wrongly shown as mesne profit) was also calculated. Pending the proceedings, on 29.06.2006, the original 2nd defendant died. However, the property had been assigned to the contesting respondents even before her death. After the death of 2nd defendant, the respondents 1 and 2 in the appeal filed an application to get themselves impleaded in the final decree proceedings by invoking Order XXII Rule 10 of the Code of Civil Procedure, 1908 (in short, "the Code"). That application was allowed and they were impleaded in the proceedings. I.A.No.81 of 2007 was filed by the defendants 4 and 5 (respondents 1 and 2) to permit them to adduce evidence to prove that the house constructed by them was not partible. It F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 6 has to be noted that the house in dispute was not in existence at the time of passing a preliminary decree.
10. Meanwhile W.P.(C) No.33662 of 2007 filed by the 3rd defendant, against the order of the trial court not accepting the first commissioner's report, was disposed of permitting her to adduce evidence before the court below to show that the house was not partible. Finally, on 19.02.2008, an order was passed in the final decree proceedings, which was impugned in the appeal before the lower appellate court. It is seen from the impugned order that Exts.C4 and C5 plan and report were accepted by the trial court. In Exts.C4 and C5, the market value of the plaintiff's share was assessed at `1,66,012/- and that was done by taking into account the value of house in the property. Ironically, in the discussion made in the order passed by the trial Judge, she had found that the building in the property was not partible. Without applying mind, the property divided as per Exts.C4 and C5 was allotted to the appellant/plaintiff, thereby enabling her to claim larger extent of property than her entitlement. That was the grievance ventilated before the lower appellate court. Considering all the aspects, the lower appellate court passed the impugned judgment.
11. Learned counsel for the contesting respondents submitted that the order passed by the Munsiff in the final decree proceedings is totally F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 7 incorrect and indefensible. The court, at the first instance, found that the house constructed by the respondents 1 and 2 are not available for partition. But, at the same time, a commissioner's plan and report, wherein the total valuation was taken including the value of the house, was accepted by the trial court. Net result will be that the plaintiff's 13/80 shares would fetch a larger extent of property than for which she is entitled.
12. Learned counsel for the respondent in his notes of argument as well as at the Bar submitted that the trial court mechanically accepted the commission report and plan and allotted plots 8A and 8B, having a total extent of 29.126 cents, to the appellant out of 89 cents found as the actual extent available for partition, although the claim was for partition of one acre of land. Further, another mistake is that the entire profits derived from 89 cents were allowed to be recovered by the appellant/plaintiff in an illegal manner. According to him, at the most, the appellant could have claimed share of profits proportionate to her share, ie., 13/80 of the total amount. This issue was also mishandled by the trial court. According to the learned counsel for the respondents, nobody can dispute the proposition that the extent of partible property is only 89 cents. If one calculates 13/80 shares of this extent, it will come to 14.462 cents. This is the area to which the appellant is entitled. Instead of allotting this area, the trial court has allotted two plots having a total extent of 29.126 cents, virtually double the F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 8 extent to which the appellant is eligible. The lower appellate court correctly analysed all these facts and found that the order passed by the trial Judge on final decree proceedings was not at all sustainable. It can be seen from the order of remand that following are the directions issued by the lower appellate court:
"1. The findings of the lower court in the final judgment that the house building in the decree schedule property is constructed by the appellants with their own funds and it is not partible and the 13/80 share of 1st respondent in the decree schedule property can be allowed after excluding the said house are proper and hence confirmed.
2. The finding of the lower court in the final judgment and decree regarding the value of 13/80 share of property of the 1st respondent and its allotment made to her are set aside. Ancillary to this finding herein, the computation of the value of the land including the value of building and the locating of 13/80 share of 1st respondent reported by the commissioner in Ext.C5 report and Ext.C4 plan are also set aside.
3. The finding in the final judgment and decree regarding the mesne profit allowable to the 1st respondent is set aside. The lower court shall pass the finding regarding the quantum of mesne profit allowable to the 1st respondent in accordance F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 9 with the preliminary decree. During the disposal of the final decree application, the lower court shall prescribe the period for realising the mesne profit by the 1st respondent.
4. While disposing the final decree application, the lower court is also directed to pass an order regarding the person or persons from whom or the share of property from which the costs of the 1st respondent shall be realised.
5. The lower court shall consider the order dated 06.04.1993 in IA No.239 of 1993 passed by this court in AS. No.93 of 1985, which is an application filed by the first respondent herein to initiate contempt proceedings, and pass appropriate separate order about the same on merits at the time of passing the final decree.
6. The other prayers of appellants and the 1st respondent are disallowed.
7. The lower court shall appoint commission for properly measuring out and locating the 13/80 share of property of 1st respondent for allotting the said share to her. Both parties are permitted to adduce their evidence, if any, before the lower court with respect to the limited purpose of the findings herein."
13. On admitted and established facts, I find no reason to interfere with the order of remand. I may say, with much restraint, that the F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 10 order passed by the trial Judge is factually incorrect, illegal and unsupportable and passed without proper application of mind.
14. Learned counsel for the appellant raised a contention that the appeal is hit by Section 97 of the Code. It is seen that such a ground was taken before the lower appellate court in the cross objection filed by the appellant. I am afraid, I cannot accept the plea that the appeal is hit by Section 97 of the Code. The matter under challenge before the lower appellate court was about the findings in a final decree proceedings. What is prevented in Section 97 of the Code is attempting to reopen the matters concluded by a preliminary decree. This is a case where Section 97 of the Code has no application. Therefore, this contention of the appellant has to fail.
15. It is disturbing to note that in the judgments of the courts below and in the pleadings the term 'share of profits' in a partition suit is wrongly mentioned as 'mesne profits' The term 'mesne profits' is defined in Section 2(12) of the Code. It reads as follows:
""mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 11 include profits due to improvements made by the person in wrongful possession."
On a mere reading of the definition, it will be clear that mesne profits means the profits which a person in possession of such property actually received or with due diligence could have received therefrom. In a suit for partition, the essential presupposition is that each party claiming a share is a co-owner and the question of wrongful possession normally does not arise between co-owners in a suit for partition, unless in a suit recovery of property from the possession of a stranger and partition is sought. Order XX Rule 12 of the Code also deals with a decree for possession and mesne profits. That provision is applicable only in the case of recovery of possession and not in a suit for partition. Therefore, the courts below and lawyers have committed a mistake of describing 'share of profits' as 'mesne profits' when both are conceptually different.
16. Learned counsel for the appellant strongly contended that the assignment in favour of the respondents 1 and 2 by the deceased 2nd defendant is in violation of injunction order. Therefore they are not entitled to claim any equity at the time of partition. Learned counsel for the contesting respondents contended that they were not parties to the suit until the death of the 2nd defendant. It is the contention of the respondents that the appellant did not make them parties in spite of the fact that she F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 12 was aware of the alienation in their favour. After the death of 2nd defendant, respondents 1 and 2 got themselves impleaded. Order XXII Rule 10 of the Code says that in case of an assignment, creation of devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. There is no rule that the assignees should come on record immediately after the assignment, as the party-assignor has an obligation to take the suit to a logical end. On the basis of these contentions, the learned counsel for the respondents submitted that their assignments are valid although the assignor was injuncted from making alienations. There is no material to hold that the assignments in favour of respondents 1 and 2 were made by the deceased 2nd defendant in collusion with them. At the most, the violator of an order of temporary injunction can be punished as provided under Order XXXIX Rule 2A of the Code. My view is fortified by a decision of the Supreme Court in Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited and others ((2013) 5 SCC 397). The relevant portion reads as follows:
"There is, therefore, little room for any doubt that the transfer of the suit property pendente lite is not void ab initio and that the purchaser of any such F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 13 property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent court may issue in the suit against the vendor."
Therefore, the contention of the appellant that respondents 1 and 2 are not entitled to claim any right over the property as their assignment was in violation of a temporary injunction order and that they are precluded from claiming equities cannot hold good.
17. Learned counsel for the appellant relying on A.Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam ((2012) 6 SCC 430) contended that people who perpetuate illegal acts by obtaining stays and injunctions from courts must be made to pay the sufferer not only the entire illegal gains made by them, but also must be burdened with exemplary costs. According to the learned counsel, the F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 14 original defendants and the contesting respondents were responsible for violating the decree in a partition suit, causing monitory loss and hardship to the appellant by prolonging the litigation. It may be true that the 2nd defendant took the suit upto the Supreme Court unsuccessfully. But then, it cannot be seen as a reason to apply the principles in Shanmugam's case (supra).
18. Learned counsel for the respondents relying on Mammathu v. Kathijumma Umma (1965 KLT 655) and Kassinkunju v. Velayudhan Pillai (1972 KLT 861) contended that there is no equity in the claim of the appellant for partition of the house as it was constructed during a period when there was no prohibitory order. It was constructed by using the funds of the contesting respondents alone. That apart, the deceased 2nd defendant had 67/80 shares, sufficiently large enough to take in the house without any injury to the appellant. Further, the appellant can be allotted a property adjacent to the public road running through the entire side of the property. Therefore, demand for valuing the house as a partible asset was an unconscionable claim, which was rightly repelled by the lower appellate court. I find the argument acceptable.
19. Learned counsel for the respondent relying on Narayanan v. Kumaran (2004 (2) KLT 312 (SC)) contended that an appeal under Order F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 15 XLIII Rule 1, Clause (u) of the Code should be heard only on the ground enumerated in Section 100 of the Code as in the case of second appeal. The proposition of law is as follows:
"An appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the Appellate Court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand where it is to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under O.43 R.(1) clause (u) should be heard only on the ground enumerated in S.100. The appellant under an appeal under O.43 R.(1) clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the Lower appellate Court."
20. On an over all assessment of the questions of law and fact, I am of the view that there is no substantial question of law arising to be F.A.O. No.360 of 2012 & F.A.O.(RO) No.361 of 2012 16 determined in these appeals and the order of remand is factually and legally correct. The disputes raised by the appellant in the cross objection were rightly repelled. I find no reason to disturb the findings of the lower appellate court.
In the result, both the appeals are dismissed. It is directed that the trial court shall dispose of the case as expeditiously as possible, at any rate within six months from the date of appearance of parties. The parties shall appear before the trial court on 19.12.2016. No order as to costs.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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