✦ High Court of India · 20 Mar 2025

BY AD vs V.N.KIRAN LAL

Case Details High Court of India · 20 Mar 2025
Court
High Court of India
Decided
20 Mar 2025
Bench
M A ABDUL HAKHIM
Length
1,238 words

RESPONDENT(S)/RESPONDENT/PLAINTIFF: V.K. SOMARAJAN AGED 77 YEARS S/O. KRISHNAN, [VALIYA KANDANKERIL VEEDU, RSA NO. 498 OF 2024 3 NJETTOOR MURI, KULANADA VILLAGE, KOZHENCHERRY TALUK] NOW RESIDING AT KAITHAKKATTIL VEEDU, EDANADU MURI, CHENGANNOOR VILLAGE, CHENGANNOOR TALUK, ALAPPUZHA DISTRICT., PIN - 689123 BY ADVS. V.N.KIRAN LAL ADITHYA NARAYANAN K.G. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA NO. 498 OF 2024 4 JUDGMENT

1. The defendant in a suit for partition and injunction is the appellant. The Plaintiff and the defendant are brothers. The plaintiff filed the suit seeking partition of 11 cents of land which was jointly purchased by them as per Ext.A1 document of the year 1972.

2. The plaintiff’s claim was that the plaint schedule property of 11 cents was acquired by the plaintiff and the defendant by making an equal contribution, and thereafter, the building was constructed by joint efforts. Since the father of the plaintiff was residing with the defendant, the defendant and his family also resided in the plaint schedule property. The plaintiff had been in naval service. After retiring from service, the plaintiff demanded for partition and the same was RSA NO. 498 OF 2024 5 refused by the defendant and hence the suit was filed.

3. The defendant filed a Written Statement contending inter alia that the plaint schedule property exclusively belonged to him and the plaintiff was included in the sale deed only for namesake. The plaint descriptions are not correct. It is the defendant who has constructed the building in the plaint schedule property.

4. The Trial Court rejected the contentions raised by the defendant and passed a Preliminary Decree ordering the partition of the plaint schedule property in equal shares between the plaintiff and the defendant. A Consequential injunction was also issued with respect to the creation of further documents.

5. The defendant filed appeal before the First Appellate RSA NO. 498 OF 2024 6 Court and the First Appellate Court dismissed the appeal confirming the judgment and decree passed by the Trial Court.

6. I heard the learned counsel for the appellant Sri.Joseph P.Alex.

7. The learned counsel for the appellant contended that even though the question of identity of the plaint schedule property was specifically raised and the same was not considered by the Trial Court as well as the First Appellate Court. The description of the plaint schedule property was made with reference to the re- survey, but the document description is with reference to the old survey. The property sought to be partitioned is 11 cents of land. The same was not specifically identified by taking out of a survey RSA NO. 498 OF 2024 7 commission. The Trial Court simply relied on the rough sketch, which is marked as Ext.C1(b) to decree the suit. If the identification made as per Ext.C1(b) is relied on, the defendant will be put to irreparable injury and hardship since the neighboring property belonged to him. The learned counsel pointed out that the plaintiff himself has admitted that there is a reduction in the extent. I am unable to accept the said contention since in the Preliminary Decree, the availability of partible assets and the shares of the parties alone are adjudicated. The Trial Court has only found that the property covered by Ext.A1 is available for partition between the plaintiff and the defendant in equal shares. The identification of the property & its extent and division as per the Preliminary Decree are RSA NO. 498 OF 2024 8 matters to be dealt with in the final decree proceedings through a survey commission. The apprehension of the defendant that Ext.C1(b) Rough Sketch will be relied on by the Final Decree Court for identification of the plaint schedule property & its extent is misconceived.

8. The next contention advanced by the learned counsel for the appellant is that, the residential building is assessed exclusively in the name of the appellant in the Panchayath records; that it would clearly prove that the building belonged to the defendant and that the principle that revenue records will not confer title on the party is not available with respect to the buildings and hence the Trial Court and the First Appellate Court ought to have found that the building RSA NO. 498 OF 2024 9 is constructed by the defendant. Going by Ext.A1 document, the property is jointly held by the plaintiff as well as the defendant. The plaintiff had been in naval service and was not available at the station. Hence, the defendant was the only person available in the station. So, there is every possibility that the building is constructed under the management of the defendant. In such a case, the probability is that the building is assessed in the name of the defendant on his application. That could not be taken as a ground or reason to hold that the building is constructed out of the funds provided by the defendant alone. No evidence was adduced by the defendant to prove that the building was constructed with the funds made available by him alone. Hence, I am unable to accept RSA NO. 498 OF 2024 10 the contention that on account of the municipal assessment of the building in favour of the defendant, the ownership of the building has to be found in favour of the defendant.

9. The learned counsel for the appellant contended that though the Trial Court has found that the defendant is entitled to allotment of the house as far as possible, the same is not found in the decreetal portion of the judgment. It is seen that a finding is specifically made by the Trial Court in Paragraph 12 that while effecting partition, the portion on which the house is situated shall be allotted to the defendant as far as possible, since the defendants are residing in the said house. Even if it is not specifically included in the decreetal portion, such equity declared by the Trial Court is RSA NO. 498 OF 2024 11 perfectly available to the defendant.

10.In view of the aforesaid discussion, I do not find any ground or reason to interfere. Accordingly, this Regular Second Appeal is dismissed. M.A.ABDUL HAKHIM JUDGE mus/sms Sd/-

RESPONDENT(S)/RESPONDENT/PLAINTIFF: V.K. SOMARAJAN AGED 77 YEARS S/O. KRISHNAN, [VALIYA KANDANKERIL VEEDU, RSA NO. 498 OF 2024 3 NJETTOOR MURI, KULANADA VILLAGE, KOZHENCHERRY TALUK] NOW RESIDING AT KAITHAKKATTIL VEEDU, EDANADU MURI, CHENGANNOOR VILLAGE, CHENGANNOOR TALUK, ALAPPUZHA DISTRICT., PIN - 689123 BY ADVS. V.N.KIRAN LAL ADITHYA NARAYANAN K.G. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA NO. 498 OF 2024 4 JUDGMENT

1. The defendant in a suit for partition and injunction is the appellant. The Plaintiff and the defendant are brothers. The plaintiff filed the suit seeking partition of 11 cents of land which was jointly purchased by them as per Ext.A1 document of the year 1972.

2. The plaintiff’s claim was that the plaint schedule property of 11 cents was acquired by the plaintiff and the defendant by making an equal contribution, and thereafter, the building was constructed by joint efforts. Since the father of the plaintiff was residing with the defendant, the defendant and his family also resided in the plaint schedule property. The plaintiff had been in naval service. After retiring from service, the plaintiff demanded for partition and the same was RSA NO. 498 OF 2024 5 refused by the defendant and hence the suit was filed.

3. The defendant filed a Written Statement contending inter alia that the plaint schedule property exclusively belonged to him and the plaintiff was included in the sale deed only for namesake. The plaint descriptions are not correct. It is the defendant who has constructed the building in the plaint schedule property.

4. The Trial Court rejected the contentions raised by the defendant and passed a Preliminary Decree ordering the partition of the plaint schedule property in equal shares between the plaintiff and the defendant. A Consequential injunction was also issued with respect to the creation of further documents.

5. The defendant filed appeal before the First Appellate RSA NO. 498 OF 2024 6 Court and the First Appellate Court dismissed the appeal confirming the judgment and decree passed by the Trial Court.

6. I heard the learned counsel for the appellant Sri.Joseph P.Alex.

7. The learned counsel for the appellant contended that even though the question of identity of the plaint schedule property was specifically raised and the same was not considered by the Trial Court as well as the First Appellate Court. The description of the plaint schedule property was made with reference to the re- survey, but the document description is with reference to the old survey. The property sought to be partitioned is 11 cents of land. The same was not specifically identified by taking out of a survey RSA NO. 498 OF 2024 7 commission. The Trial Court simply relied on the rough sketch, which is marked as Ext.C1(b) to decree the suit. If the identification made as per Ext.C1(b) is relied on, the defendant will be put to irreparable injury and hardship since the neighboring property belonged to him. The learned counsel pointed out that the plaintiff himself has admitted that there is a reduction in the extent. I am unable to accept the said contention since in the Preliminary Decree, the availability of partible assets and the shares of the parties alone are adjudicated. The Trial Court has only found that the property covered by Ext.A1 is available for partition between the plaintiff and the defendant in equal shares. The identification of the property & its extent and division as per the Preliminary Decree are RSA NO. 498 OF 2024 8 matters to be dealt with in the final decree proceedings through a survey commission. The apprehension of the defendant that Ext.C1(b) Rough Sketch will be relied on by the Final Decree Court for identification of the plaint schedule property & its extent is misconceived.

8. The next contention advanced by the learned counsel for the appellant is that, the residential building is assessed exclusively in the name of the appellant in the Panchayath records; that it would clearly prove that the building belonged to the defendant and that the principle that revenue records will not confer title on the party is not available with respect to the buildings and hence the Trial Court and the First Appellate Court ought to have found that the building RSA NO. 498 OF 2024 9 is constructed by the defendant. Going by Ext.A1 document, the property is jointly held by the plaintiff as well as the defendant. The plaintiff had been in naval service and was not available at the station. Hence, the defendant was the only person available in the station. So, there is every possibility that the building is constructed under the management of the defendant. In such a case, the probability is that the building is assessed in the name of the defendant on his application. That could not be taken as a ground or reason to hold that the building is constructed out of the funds provided by the defendant alone. No evidence was adduced by the defendant to prove that the building was constructed with the funds made available by him alone. Hence, I am unable to accept RSA NO. 498 OF 2024 10 the contention that on account of the municipal assessment of the building in favour of the defendant, the ownership of the building has to be found in favour of the defendant.

9. The learned counsel for the appellant contended that though the Trial Court has found that the defendant is entitled to allotment of the house as far as possible, the same is not found in the decreetal portion of the judgment. It is seen that a finding is specifically made by the Trial Court in Paragraph 12 that while effecting partition, the portion on which the house is situated shall be allotted to the defendant as far as possible, since the defendants are residing in the said house. Even if it is not specifically included in the decreetal portion, such equity declared by the Trial Court is RSA NO. 498 OF 2024 11 perfectly available to the defendant.

10.In view of the aforesaid discussion, I do not find any ground or reason to interfere. Accordingly, this Regular Second Appeal is dismissed. M.A.ABDUL HAKHIM JUDGE mus/sms Sd/-

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