BY AD v. SRI.P.B.KRISHNAN

BY ADVS. SMT.P.K.RADHIKA SRI.T.KRISHNANUNNI (SR.) SMT.K.DEEPA (PAYYANUR) K.SHIBILI NAHA SRI.A.RANJITH NARAYANAN A.LOWSY THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON

11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = R.F.A. No.544 of 2008 = = = = = = = = = = = = = = = = = = Dated this the 11th day of January, 2024 J U D G M E N T Challenging the preliminary decree in a suit for partition, defendants 2 to 4 are in appeal.

2. The plaint schedule property is described as, landed property having buildings with shop rooms.

3. According to the plaintiffs, the plaint schedule property was purchased by one Abdul Hameed Rawthar and his two sons namely, the first defendant and Abdul Khader as per Ext.A3 Sale Deed dated 20.04.1967. Abdul Hameed Rawther died in the year 1976, and Abdul Khader died in the year 2003. Plaintiffs are the two daughters of Abdul Hameed Rawther and the sisters of the first defendant and Abdul Khader. Defendants 2 to 4 are the legal heirs of Abdul Khader. The suit is filed seeking partition of the 1/3rd share of the father over the plaint schedule property. R.F.A. No.544 of 2008 -: 2 :-

4. Defendants 2 to 4 contended that, the first defendant had released his rights over the property to their predecessor Abdul Khader as per Ext.B1 document dated 20.05.1992. The building in the property was reconstructed by Abdul Khader. They thus challenged the partibility of the building. It was also pleaded that the plaintiffs have lost title over the property by adverse possession.

5. The trial court negatived the plea of adverse possession. The court did not decide on the question as to who constructed the building, but relegated the issue for consideration in the final decree. It was held that the plaintiffs are entitled to 2/18 shares, and defendants 2 to 4 are entitled to 6/18 shares from out of the plaint schedule property. It was also held that the plaintiffs are entitled for mesne profits. The quantum of mesne profits was to be adjudicated in the final decree proceedings. R.F.A. No.544 of 2008 -: 3 :-

6. Pending the appeal, the second plaintiff released her rights to the second defendant. Therefore, all that remains for consideration is the entitlement of the first plaintiff for 1/18 shares out of the plaint schedule property.

7. I have heard learned counsel on either side.

8. The points that arise for determination in this appeal are:- (i) Whether the building situated in the plaint schedule property is partible ? (ii) Whether the plaintiff is entitled for past mesne profits?

9. Ext.A3 Sale Deed, which is of the year 1967, mentions about the existence of a building. However, a reading of the description of the building as given therein indicates that it was a residential building. It is not in dispute that the building presently in existence is not the one that was in existence at the R.F.A. No.544 of 2008 -: 4 :- time of Ext.A3. Ext.B2 is the building permit of the year 1975 in the name of Abdul Khader viz. the predecessor of defendants 2 to 4 for construction of a building in the property. Exts.B3 to B5 are the renewals of the permit. The last renewal Ext.B5, is dated

20.06.1983. Ext.B9 dated 22.10.1988 is the building tax assessment. While the building permits are in the name of the Abdul Khader, the building tax assessments are in the names of the first defendant and Abdul Khader. The right of the first defendant was got released by Abdul Khader as per Ext.B1 document dated 20.05.1992. Thus defendants 2 to 4 claim exclusive title over the building. On the other hand the plaintiffs claim that they are co-owners of the same.

10. As was noticed earlier, the trial court did not adjudicate on the question as to who constructed the building. The said issue was relegated to the final decree proceedings. However, the issue regarding the R.F.A. No.544 of 2008 -: 5 :- availability of the building for partition is to be decided in the preliminary decree proceedings itself to decide on its partibility and adjustment of rights. Incidentally it is to be noticed that, the building practically covers the entire land.

11. Abdul Hameed Rawther died in the year 1976. The building permit Ext.B2, was applied for and obtained in the year 1975. It was being renewed till the year 1983, obviously since the construction was not over. There is no plea or evidence that the father Abdul Hameed Rawther, or on his death the plaintiffs herein, had expended any amounts for construction of the building. In the circumstances, it could only be concluded that the building was constructed by Abdul Khader. Law is settled that one co-owner cannot by unilaterally effecting constructions in the common property oust or deprive the other co-owners. R.F.A. No.544 of 2008 -: 6 :-

12. Since the application for building permit was given during the life time of the father Abdul Hameed Rawther, and the parties being father and sons, it could only be probable that the construction was made with the consent of the other co-owners of the property. Therefore, the benefit of the improvements/construction enure to all the co-owners. Therefore, plaintiffs 1 and 2, who also are the legal heirs of Abdul Hameed Rawther are also entitled for a share in the building constructed in the property.

13. However, since the plaintiffs had not expended their share for construction of the building they are bound do pay the proportionate value of the construction to defendants 2 to 4 who are the legal heirs of Abdul Khader, he being the co-owner who constructed the building. As the 2nd plaintiff having conveyed her share to the 2nd defendant, her rights are no more in issue. That the quantum of the share of the first plaintiff R.F.A. No.544 of 2008 -: 7 :- over the plaint schedule property is 1/18, is not in dispute between the parties. The 1st plaintiff though entitled for 1/18 shares in the plaint schedule property, is bound to pay 1/18 share of the cost of the building situated in the property. A decree is to be passed on the said terms.

14. As regards the claim for mesne profits, the trial court has granted a decree for past mesne profits for a period of three years prior to the filing of the suit, along with future mesne profits. However, in the plaint the claim is only for future mesne profits. The plaintiff had not sought nor paid court fee for past mesne profits. Therefore, the decree for past mesne profits is liable to be interfered with. As directed by the trial court, the quantum of mesne profits is to be decided in the final decree proceedings. In the result, the appeal is allowed. The judgment and decree of the trial court are set aside and modified R.F.A. No.544 of 2008 -: 8 :- preliminary decree is passed in the following terms:- (i) It is declared that the first plaintiff has 1/18 shares and defendants 2 to 4 have 17/18 shares over the plaint schedule property including the building situated thereon. (ii) The parties are entitled for metes and bounds division of their shares. (iii) The first plaintiff is bound to pay 1/18 share of the total cost of construction of the building situated in the property. (iv) The quantum of mesne profits is to be decided in the final decree proceedings. (v) Equities to be worked out in the final decree proceedings. (vi) Parties to appear before the trial court on

30.01.2024. The court shall cause final decree proceedings to be initiated as directed by the Apex Court in Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan R.F.A. No.544 of 2008 -: 9 :- (2022 SCC OnLine SC 737) (vi) Parties to bear their respective costs. Sd/- SATHISH NINAN JUDGE kns/- //True Copy// P.S. to Judge