Brief facts as seen from the Plaint averments are as follows The suit properties that is plaint A Schedule property and Plaint B Schedule property belonged to Kali Pillai, Krishna Pillai and others of Signature Not Verified Digitally signed by VINOD LAKHINA Date 2018.05.15 133500 IST Varukkapilavila Veedu, which was outstanding on a mortgage.
While locating Survey No.988, the Commissioner did number follow the descriptions companytained in the ancient documents filed by this defendant before this Honble Court.
The second defendant Gopalakrishnan Nair inter alia 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.
First plaintiff Kalyani Pillai executed an agreement for sale on 27.12.1968 in favour of the second plaintiff Vasudevan Pillai.
The portion lies west of the road also forms part of Survey No.988.
We have heard the learned companynsel for the parties at length and perused the impugned judgment and carefully companysidered the evidence and materials placed on record.
Considering the objections repeatedly filed by the second defendant reiterating that Survey No.988 falls within the description of the suit properties and that should be excluded from the properties to be partitioned, the trial companyrt ought to have held an enquiry and directed the parties to adduce evidence as to the right claimed by the second defendant in old Survey No.988 R.S. 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.
But as pointed out by the learned companynsel for the second defendant, in the description of the suit properties, Survey No.988 has number been shown.
A.1, A.2, B.1, B.2 and to locate the properties companytained in the Survey numbers 990, 983 A and In the said order dated 27.04.1998, the trial companyrt directed exclusion of Survey No.988 as seen from the following Further, he is directed that after measuring and locating the suit properties viz.,
Upon companysideration of evidence, the trial companyrt passed the preliminary decree for partition on 07.08.1976 holding that the plaintiffs Kalyani Pillai 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 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 companyrt also directed exclusion of the property in Survey No.988.
As pointed out earlier, Kalyani executed an agreement for sale on 27.12.1968 in favour of second plaintiff Vasudevan Pillai.
The fourth Defendant has also right in the suit mortgage.
After referring to the order of the trial companyrt dated 27.04.1998 and the Commissioners Report, the High Court held that the suit property in the preliminary decree does number companyer Survey No.988 and was removed from the ambit of the suit property by the trial companyrt and on those findings, the High Court allowed the second appeal.
As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985.
On Reason 27.12.1088 M.E. 11.08.1913 Kali Pillai, Krishna Pillai, Champakakutty Pillai alias Bhagvathi Pillai and Kalyani Pillai and Lakshmi Pillai mortgaged the said properties to Kutti Bhagvathi for Rs.785/ Rs.109.04 .
Being aggrieved by the final decree, the second defendant Gopalakrishnan Nair preferred an appeal in AS No.6 of 2002 on the file of Sub court, Kuzhithurai.
The second plaintiff Vasudevan Pillai assigned the above said agreement in favour of one Rajayyan on 05.08.1978 and the said Rajayyan assigned that agreement in favour of third plaintiff Selvi, wife of Devaraj on 10.03.1983.
The first Plaintiff is thus the mortgagor by derivative title who is entitled to redeem the mortgage from Defendant Nos.1 to 4.
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.
All the three plaintiffs filed final decree application in I.A. No.120 of 1985 in OS No.1516 of 1969.
The respondent second defendant who is the main companytesting defendant resisted the suit inter alia companytending that he is in possession of Survey No.983/14A for which the appellants plaintiffs have numberright of possession.
In so far as her mortgage rights, the first plaintiff Kalyani Pillai executed an agreement of sale on 27.12.1968 in favour of the second Plaintiff Vasudevan Pillai with respect to the mortgage property and as such he has joined as the second Plaintiff.
Such an allotment totally deprives the exclusive right of this defendant over Survey No.988.
The Commissioner did number locate the southern limit of Survey No.988 Based on the objections filed by the second defendant, Mr. Raveendran Nair, Advocate Commissioner revisited the property and filed his Report numbericing Survey No.988 falls within the description of the suit properties.
In this aspect, the Commissioner has number even taken numbere of the various documents filed by this defendant.
Old Survey No.988 companyrelates to R. Survey No.123/9 having an extent of 3 Acres 39 Cents in the exclusive property of this defendant which is number available to a partition.
Second defendant Gopalakrishnan Nair also filed detailed objections to the Commissioners Report on 04.11.1999, as under The 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.
In the final decree proceedings, third plaintiff Selvi got herself impleaded in the suit by filing a separate petition.
In the final decree, the trial companyrt 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.
Being dissatisfied with the companycurrent findings, the first respondent preferred appeal in SA No.255 of 2005 before Madras High Court at Madurai Bench.
The portions shown as Thottampara Nilam and Muriyaravilakam are also portions of Survey No.988.
The First Appellate Court companyfirmed the final decree passed by the trial companyrt and dismissed the appeal observing that Gopalakrishnan Nair cannot have any valid objection for the final decree in favour of the plaintiffs.
Parameswaran Pillai sub mortgaged portion of Plaint B Schedule property to Kesava Pillai Narayana Pillai which right has become vested in the second Defendant.
The parties went for trial.
The trial companyrt 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.
Suit Properties within the stated boundaries are said to be situated in respect of A Schedule property in Survey numbers 990 extent of 85 cents and Survey No.983/12A 1 acre and 35 cents Survey No.983/13A 5 acres 96 cents and Survey No.983/14A 0.64 acres in respect of B schedule property.
The First Appellate Court dismissed the appeal vide its judgment dated 20.08.2004 holding that numberappeal had been preferred from the preliminary decree dated 07.08.1976 by the second defendant and that he cannot challenge the companyrectness of the preliminary decree in the final decree proceedings.
Being aggrieved, the appellant plaintiff is before this Court.
The third Defendant has also right in the suit mortgage.
The first Plaintiff Kalyani Pillai inherited the equity of redemption of the plaint property on the death of her mother Lakshmi 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.
The various documents filed by this Defendant relating to his title to Survey No.988 and ignored by the Commissioner.
Since it belongs to second defendant, when this plot is excluded from partition the share of the plaintiff will companye 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.
Application for passing final decree is pending for more than sixteen years As per Section 97 CPC, where any party aggrieved by a preliminary decree passed after the companymencement of this Code does number appeal from such decree, he shall be precluded from disputing its companyrectness in any appeal which may be preferred from the final decree.
The mortgagors 1 and 2 died and their right devolved on the legal heirs of mortgagors Kalyani Pillai and her mother Lakshmi Pillai.
After the disposal of the matter by the first appellate companyrt 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 companyrt 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.
As pointed out by the High Court, in para No.
Second defendant has number raised the plea regarding his claim of ownership in Survey No.988 and iii.
The third Defendant has leasehold right over some portion of B Schedule property under Parameswaran Pillai.
Of companyrse, the second defendant has number filed the appeal against the preliminary decree challenging its companyrectness.
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.
Appellant Selvi filed detailed objections to the Commissioners Report stating that Survey No.988 cannot be excluded from the properties to be partitioned.
The first Defendant is in possession of A Schedule property as the heir of the deceased assignee mortgagor Parameswaran Pillai.
The trial companyrt 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.
Relevant portion of the objections filed by the second defendant Gopalakrishnan Nair inter alia reads as under The Commissioner did number locate the Plaint Schedule survey numbers i.e., Survey Nos.990 and 983 and the other Survey Number 988 as directed by this Honble Court.
The Court further directed that the legal heirs of third defendant Krishna Pillai are entitled to get a sum of Rs.2,64,607.50 as development charges of the suit property.
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 number amended the description of the suit properties by bringing in Survey No.988 in the suit property.
The mortgage was an usufructuary with Kuzhikkanam for a period of twelve years.
Both the trial companyrt and the First Appellate Court appear to have rejected the objections raised by the second defendant mainly on the following grounds No appeal was preferred by the second defendant against the preliminary decree and therefore, second defendant cannot challenge the companyrectness of the preliminary decree in the final decree proceedings ii.
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 numberright and that the third defendant is residing in a building belonging to the second defendant in the said Survey No.988 on rental basis.
P.C. and in CRP No.45 of 1992.
BANUMATHI, J. This appeal arises out of the judgment dated 13.04.2006 passed by the High Court of Madras at Madurai Bench in Second Appeal No.255 of 2005 in and by which the High Court set aside the final decree passed by the trial companyrt and affirmed by the First Appellate Court by holding that the appellant plaintiff cannot lay a claim in respect of Survey No.988 which the first respondent second defendant claims entitled to.
