Sharp Builders And Developers vs Sharp Builders And Developers
2021 Latest Caselaw 4831 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                             &

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

 WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                     RFA.No.243 OF 2020

  AGAINST THE JUDGMENT IN FDIA 809/2014 IN O.S.NO.36/2012
     DATED 23.3.2020 ON THE FILE OF SUB COURT, KANNUR


APPELLANT/RESPONDENT NO.12 IN FDIA:

            SHARP BUILDERS AND DEVELOPERS
            MALABAR TOWER, KANNUR 670 002, REPRESENTED BY
            ITS MANAGING DIRECTOR, MAIMOON SHARAF,
            W/O.K.T. SHARAFUDHEEN, AGED 48 YEARS, RESIDING
            AT FAYFI GARDEN PALLERI, P.O. NARATH, KANNUR 670
            601, KANNUR TALUK, KANNUR DISTRICT.

            BY ADVS.
            SRI.ABDUL RAOOF PALLIPATH
            SHRI. RAJ CAROLIN V.

RESPONDENTS/PETITIONERS 1 & 2, RESPONDENTS 8,9,11 & 13 TO 20
IN FDIA & SUPPLEMENTAL RESPONDENTS:

      1     KAYYATH REALTORS
            REGISTERED NO. 1992/07, REPRESENTED BY ITS
            MANAGING PARTNER, P.P. NOOR MUHAMMED, S/O.
            ABOOBACKER, AGED 82 YEARS, B.S.N.L. ENGINEER,
            RESIDING AT ILLIYAN, KALLIASSERI AMSOM DESOM,
            KANNUR 670 603.

      2     JOINT MANAGING PARTNER OF THE ABOVE FIRM,
            PEETAYIL NARAYANAN, S/O. KORAN,
            AGED 86 YEARS, RESIDING AT DHANDEEP, ELAYAVOOR
            AMSOM, CHOVVA DESOM, KANNUR 670 603,
 R.F.A.No.243 of 2020

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      3     KANIYARAKKAL AYISHA,
            D/O.A.P. SOOPY, AGED 71 YEARS, HOUSE WIFE,
            RESIDING AT 'AYISHAS', NIDUVATTU P.O. NARATH
            KANNUR 670 603.

      4     P. RAMACHANDRAN,
            S/O.P.P. KUNHIKANNAN, AGED 78 YEARS
            RESIDING AT ARCHANA
            P.O. CIVIL STATION, KANNUR 670 002.

      5     A.K. ZAWAHIR,
            S/O. KUNHALI, AGED 40 YEARS
            RESIDING AT SHABNAM, KOTTACHERY LANE, THANA P.O.
            THANA, KANNUR-I AMSOM, KANNOTHUMCHAL WARD,
            KANNUR 670 012.

      6     C.V. KOMALA,
            W/O. LATE KARYADATH RAJAN, AGED 68 YEARS
            CHANDRAKANTHAM, PALAPPUZHA, VIA PERAVOOR,
            PERAVOOR AMSOM, PALAPPUZHA DESOM, P.O.
            KAKKAYANGAD,
            KANNUR 670 673.

      7     REMYA NIKESH,
            D/O. LATE KARYADATH RAJAN, AGED 41 YEARS
            CHANDRAKANTHAM, PALAPPUZHA, VIA PERVOOR,
            PERAVOOR AMSOM, PALAPPUZHA DESOM, P.O.
            KAKKAYANAD, KANNUR 670 673.

      8     ANJU RAJ,
            D/O. LATE KARYADATH RAJAN, AGED 36 YEARS
            CHANDRAKANTHAM, PALAPPUZHA, VIA PERAVOOR,
            PERAVOOR AMSOM, PALAPPUZHA DESOM,
            P.O. KAKKAYANGAD, KANNUR 670 673.

      9     MAIMOON SHARAF P.P.
            W/O. SHARAFUDHEEN K.T., AGED 55 YEARS
            FAYFI GARDEN, PALLERI, NARATH P.O.
            KANNUR 670 601.
 R.F.A.No.243 of 2020

                           :-3-:

      10    MUHAMMED FUHAD SENIL,
            S/O. SHARAFUDHEEN K.T., AGED 34 YEARS
            FAYFI GARDEN, PALLERI, NARATH P.O.
            KANNUR 670 601.

      11    SHAHNAD SHARAF,
            S/O. SHARAFUDHEEN K.T., AGED 32 YEARS
            FAYFI GARDEN, PALLERI, NARATH P.O.
            KANNUR 670 601.

      12    FATHIMA SHERIN,
            D/O. SHARAFUDHEEN K.T., AGED 30 YEARS
            FAYFI GARDEN, PALLERI, NARATH P.O.
            KANNUR 670 601.

      13    AYISHA FIDA P.P.
            D/O. SHARAFUDHEEN K.T., AGED 25 YEARS
            FAYFI GARDEN, PALLERI, NARATH P.O.
            KANNUR 670 601.

            R1-2 BY ADV. SRI.B.KRISHNAN
            R1-2 BY ADV. SRI.R.PARTHASARATHY
            R5 BY ADV. SMT.C.LEENA
            R10 BY ADV. SRI.C.H.ABDUL RASAC

     THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
28-01-2021, THE COURT ON 10-02-2021 DELIVERED THE FOLLOWING:
 R.F.A.No.243 of 2020

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       Dated this the 10th day of February, 2021


                           J U D G M E N T

T.V.ANILKUMAR, J.

This appeal is filed challenging the final

judgment and decree for partition dated 23.03.2020

passed by the learned Subordinate Judge, Kannur, in

F.D.I.A.No.809/2014 in O.S.No.36/2012. Pursuant to

preliminary decree for partition declaring shares

of parties, a Commission was deputed for

quantification of shares and allocation of

properties to the sharers under the decree. None of

the sharers seems to be aggrieved by the final

decree passed in terms of Ext.C2 report and

Ext.C2(e) plan.

2. The appeal is preferred by 12th respondent

in the final decree proceeding, which is a Firm

represented by its joint Managing partner. The Firm

is neither a party to suit nor a sharer as per the R.F.A.No.243 of 2020

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preliminary decree. It came on record as per an

order dated 07.10.2015 on I.A.No.1052/2015 passed

by the final decree court. It raised a claim

pleading for creation of charge in the decree

schedule property contending that it had an

enforceable money claim against one of the sharers.

The claim was refused on factual as well as legal

reasons. Being aggrieved by the refusal, it has

preferred this appeal.

3. The tenth respondent in the appeal alone

appeared. We heard the learned counsel appearing

for the appellant as well as the tenth respondent.

4. Appellant's claim is that sixth defendant

in the suit who is a sharer permitted the Firm to

occupy the house in the property for a period of

twelve years on receipt of a lump sum amount of

Rs.10 lakhs as a refundable security, without

creating any obligation of paying any rent for the

stipulated twelve years. According to the R.F.A.No.243 of 2020

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appellant, the liability of sixth defendant has not

yet been discharged and it created a charge in the

decree schedule property. The appellant sought in

the proceedings to protect the debt in its favour

either by creating a charge in the property or

securing a decree granting permission to it to

continue in possession of the building for the

stipulated period of twelve years. The sixth

defendant parted with his rights in the property in

favour of defendants 8 to 11 who as per the

preliminary decree, obtained 4/16 share in the

property. The sixth defendant later passed away.

5. The appellant adduced evidence in the court

below in support of its case that the Firm advanced

an amount of Rs.10 lakhs to the sixth defendant and

was put in possession for twelve years without any

obligation of paying any rent for the period. Oral

evidence was adduced through DWs.1 to 4. A

photocopy of alleged agreement evidencing receipt R.F.A.No.243 of 2020

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of amount and entrustment of property was sought to

be proved, which the court below refused to accept

in evidence as being inadmissible.

6. On appreciating the oral evidence, the

court below entered into a factual finding that the

appellant failed to establish its claim. The court

below further went on to hold that the claim raised

by the appellant was beyond the scope of final

decree proceedings and therefore also it was not

sustainable.

7. The contention of the learned counsel for

the appellant is that the finding of the court

below is factually and legally erroneous and is

liable to be interfered with in the appeal.

8. After hearing the counsel appearing on both

sides, we find it difficult to accept any of the

contentions taken by the appellant in appeal.

9. We are also of the opinion that the claim

advanced by the appellant in the final decree R.F.A.No.243 of 2020

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proceedings is not admissible within the scope of

the proceedings. No rights were conferred on the

appellant by the preliminary decree for partition

passed in the suit. In a proceedings for passing a

final judgment, the court is concerned only with

working out the rights of the parties as provided

in the preliminary decree and quantifying shares

allotted to parties. Adjudication of rights claimed

by the third parties does not arise in such

proceedings.

10. The cause of action for the alleged claim

raised by the appellant is no way connected with

the cause of action which led to the institution of

the instant suit for partition. If at all, the Firm

has got any genuine claim for recovery of money as

against the debtor, who is a sharer in the

property, it could afford a cause of action only

for a separate suit. The disputed money claim and

right to demand creation of charge in the property R.F.A.No.243 of 2020

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being subject matter of an independent suit, cannot

be allowed to be adjudged in the instant final

decree proceedings.

11. The argument of the learned counsel for the

appellant that claim made by him is worthy of being

examined and decided at a final decree stage, does

not merit acceptance. Order 20 Rule 18 CPC provides

that a court passing a final judgment cannot

proceed beyond what the preliminary decree provides

for and the directions contained therein. The plea

for creation of charge and alternative claim for

allotment of property to the appellant cannot be

approved as matters related to quantification of

shares arising in final decree proceedings. On the

other hand, in our view, they are disputes having a

bearing on rights and liabilities arising between

concerned parties which essentially require to be

adjudicated in a separate suit. We do not therefore

find that the court below has committed any error R.F.A.No.243 of 2020

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or illegality in taking the view that the claim

raised before it exceeded the scope of final decree

proceedings.

In the result, appeal fails and it is

dismissed. We are, however, inclined to leave open

the claim raised by the appellant in this

proceeding to be agitated in a separate suit in

accordance with law untrammelled by the factual

finding entered into in the impugned final judgment

dated 23.03.2020.

All pending interlocutory applications are

closed.

Sd/-

A.HARIPRASAD JUDGE

Sd/-

T.V.ANILKUMAR JUDGE ami/