Kerala High Court
Damodaran vs Sreenivasan on 24 October, 2024
R.S.A.NOS.262 & 424 OF 2005
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
RSA NO. 262 OF 2005
AGAINST THE JUDGMENT DATED 29.11.2004 IN AS NO.41 OF 2002 OF
DISTRICT COURT, THRISSUR
ARISING OUT OF THE JUDGMENT DATED 31.10.2001 IN OS NO.682 OF 1996
OF PRINCIPAL SUB COURT, THRISSUR
APPELLANT/APPELLANT/DEFENDANT:
DAMODHARAN, S/O.UPPUKUNNATH RAMAN,
CHOWALLUR DESOM, KANDANISSERY VILLAGE, THALAPPILLY TALUK.
BY ADVS. SRI.N.P.SAMUEL
SRI.PLEASANT T. SAMUEL
RESPONDENT/RESPONDENT/PLAINTIFF:
1 SREENIVASAN (DIED), S/O.UPPUKUNNATH RAMAN,
CHOWALLUR DESOM, KANDANISSERY VILLAGE, THALAPPILLY TALUK,
REPRESENTED BY MUKTHIAR AGENT PUSHPARJINI SREENIVASAN,
W/O.UPPUKUNNATH SREENIVASAN, KANDANISSERY VILLAGE,
THALAPPILLY TALUK, THRISSUR DISTRICT
2 ADDL. R2 PUSHPARANJINI
W/O. UPPUKUNNATH SREENIVASAN, CHOWALLUR DESOM, P.O.
KANDANISSERY, ARIYANNUR, THRISSUR - 680102.
3 ADDL. R3 SMITHA,(DIED) LHRS IMPLEADED
D/O. UPPUKUNNATH SREENIVASAN, CHOWALLUR DESOM, P.O.
KANDANISSERY, ARIYANNUR, THRISSUR - 680102.
R.S.A.NOS.262 & 424 OF 2005
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4 ADDL. R4 KAVITHA
D/O. UPPUKUNNATH SREENIVASAN, CHOWALLUR DESOM, P.O.
KANDANISSERY, ARIYANNUR, THRISSUR - 680102.
5 ADDL. R5 RACHANA,
D/O. UPPUKUNNATH SREENIVASAN, CHOWALLUR DESOM, P.O.
KANDANISSERY, ARIYANNUR, THRISSUR - 680102.
6 ADDL. R6 SREEKANTH,
S/O. UPPUKUNNATH SREENIVASAN, CHOWALLUR DESOM, P.O.
KANDANISSERY, ARIYANNUR, THRISSUR - 680102.
(THE LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT ARE
IMPLEADED AS ADDL. RESPONDENTS 2 TO 6 AS PER THE ORDER DATED
29/10/18 IN IA 628/2015)
7 ADDL.R7 SHAMMY, AGED 53 YEARS,
KARIPPARA HOUSE, AYYANTHOLE.P.O., THRISSUR -680003
8 ADDL.R8 KANCHAN
AGED 22 YEARS
KARIPPARA HOUSE, AYYANTHOLE.P.O., THRISSUR -680003
9 ADDL.R9 MEGHANA
AGED 18 YEARS
KARIPPARA HOUSE, AYYANTHOLE.P.O., THRISSUR -680003
(LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 7 TO 9 AS PER ORDER DATED 07.10.2024
IN IA.NO.1/2023)
R2, 4, 5, 6 BY ADV P.V.CHANDRA MOHAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2024,
ALONG WITH RSA.424/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A.NOS.262 & 424 OF 2005
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2024:KER:79475
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
RSA NO. 424 OF 2005
AGAINST THE JUDGMENT AND DECREE DATED 29.11.2004 IN AS NO.43 OF
2002 OF DISTRICT COURT, THRISSUR
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.10.2001 IN OS
NO.563 OF 1996 OF PRINCIPAL SUB COURT, THRISSUR
APPELLANT/APPELLANT/DEFENDANT:
DAMODARAN
S/O. UPPUKUNNATH RAMAN, CHOWALLUR DESOM, KANDANISSERY
VILLAGE,, TALAPPILLY TALUK.
BY ADV SRI.N.P.SAMUEL
SRI.PLEASANT T. SAMUEL
RESPONDENT/RESPONDENT/PLAINTIFF:
1 SREENIVASAN
S/O. UPPUKUNNATH RAMAN, CHOWALLUR DESOM, KANDANISSERY
VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.
ADDL.R2 PUSHPARANJINI
W/O UPPUKUNNATH SREENIVASAN,CHOWALLUR DESOM,KANDANISSERY
VILLAGE,TALAPPILLY TALUK,P.O KANDANISSERY,ARIYANNUR,THRISSUR
680102
ADDL.R3 SMITHA ,(DIED) LHRS IMPLEADED
D/O UPPUKUNNATH SREENIVASAN,CHOWALLUR DESOM,KANDANISSERY
VILLAGE,TALAPPILLY TALUK,P.O KANDANISSERY,ARIYANNUR,THRISSUR
680102
R.S.A.NOS.262 & 424 OF 2005
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ADDL.R4 KAVITHA
D/O UPPUKUNNATH SREENIVASAN,CHOWALLUR DESOM,P.O
KANDANISSERY,ARIYANNUR,THRISSUR 680102
ADDL.R5 RACHANA
D/O UPPUKUNNATH SREENIVASAN,CHOWALLUR DESOM,
P.O KANDANISSERY,ARIYANNUR,THRISSUR 680102
ADDL.R6 SREEKANTH
S/O UPPUKUNNATH SREENIVASAN,CHOWALLUR DESOM,
P.O KANDANISSERY,ARIYANNUR,THRISSUR 680102
(LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT ARE
IMPLEADED AS ADDL RESPONDENTS 2 TO 6 AS PER THE ORDER DATED
29/10/2018 IN IA 626/2015)
ADDL.R7 SHAMMY
AGED 53 YEARS
KARIPPARA HOUSE, AYYANTHOLE.P.O., THRISSUR-680003
ADDL.R8 KANCHAN, AGED 22 YEARS,
KARIPPARA HOUSE, AYYANTHOLE.P.O., THRISSUR -680003
ADDL.R9 MEGHANA, AGED 18 YEARS,
KARIPPARA HOUSE, AYYANTHOLE.P.O., THRISSUR -680003.
(THE LEGAL HEIRS OF DECEASED RESPONDENT NO.3 ARE IMPLEADED
AS ADDL.R7 TO R9 AS PER ORDER DATED 07.10.2024 IN
IA.NO.1/2023)
ADDL.R2, R4 TO R6 BY ADVS. P.V.CHANDRA MOHAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2024,
ALONG WITH RSA.262/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A.NOS.262 & 424 OF 2005
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JUDGMENT
[RSA Nos.262/2005 & 424/2005]
1. The defendant in two suits, which are disposed of by a common
judgment by the Trial Court, is the appellant in both these
appeals. The plaintiff is the brother of the defendant. R.S.A
No.262/2005 arises from O.S.No.682/1996. R.S.A No.424/2005
arises from O.S.No.563/1996.
2. O.S.No.563/1996 is a suit for a permanent prohibitory
injunction seeking the defendant from forcibly trespassing into
the plaint schedule property and from disturbing the plaintiff's
residence in the building therein with family. The plaint
schedule property therein is 34 cents of land and a residential
building therein. O.S.No.682/1996 is filed for partition of plaint
A, B, C & D schedule properties scheduled therein. With
respect to the partition of C & D schedule properties the parties
do not have any dispute. Plaint A schedule property in
O.S.No.682/1996 is the plaint schedule property in
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O.S.No.563/1996. Plaint B schedule property is 1.06 acres land
lying opposite side of Plaint A schedule property. Plaint A
schedule property is situated on the western side of the road
and plaint B schedule property is situated on the eastern side
of the road. Both properties originally belonged to the father of
the plaintiff and the defendant, Raman, who died on
23.12.1987. As admitted by both sides, father Raman executed
Ext.A18 Will dated 03.12.1987, by which the plaint schedule
properties are equally allotted to the plaintiff and the
defendant. The plaintiff claimed that the house situated in
plaint A schedule property is constructed by him with his own
funds, with the consent of father, it exclusively belonged to him
and hence not available for partition. The prayer in
O.S.No.682/1996 is to divide plaint schedule properties into
equal shares and to allot a portion of A schedule property, in
which the house is situated, to the plaintiff.
3. The defendant disputed the claim of partition made by the
plaintiff on the ground that the house situated in plaint A
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schedule property is constructed by the father of the plaintiff
and the defendant, and not by the plaintiff, as claimed by the
plaintiff. With regard to the partibility of the plaint schedule
properties and the share of the plaintiff and the defendant,
there was no dispute between the parties.
4. The Trial Court as well as the First Appellate Court found that
the building in plaint A schedule property is constructed by the
plaintiff. Accordingly, the Trial Court passed a common
judgment dated 31.10.2001 decreeing O.S.No.563/1996
restraining the defendant by a permanent prohibitory
injunction from trespassing into the plaint schedule property
therein or in anyway interfering with the peaceful residence
and enjoyment of the said property by the plaintiff and his
family. O.S.No.682/1996 is decreed passing a preliminary
decree for partition directing to divide the plaint schedule
properties into two equal shares allotting one such share to the
plaintiff and one such share to the defendant, directing to allot
plaint A schedule property to the share of the plaintiff
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exempting the house situated therein from valuation, directing
division of plaint B schedule property allotting the area in
which the house is constructed to the defendant exempting the
house in B schedule from valuation and further directing to
divide C and D schedule properties into two equal shares
allotting the plaintiff and defendant equally.
5. The defendant filed A.S.Nos.41/2002 and 43/2002 challenging
the judgment and decree of the Trial Court in both suits. The
plaintiff filed Cross Objection in A.S.No.41/2002. The First
Appellate Court dismissed the Appeals and the Cross Objection
by judgment dated 29.11.2004.
6. I heard the learned counsel for the appellant
Sri. Pleasant T. Samuel and the learned counsel for the
contesting respondents Sri.P.V. Chandra Mohan.
7. The learned counsel for the appellant submitted that the Trial
Court as well as the First Appellate Court acted illegally in
holding that the house constructed in plaint A schedule
property is constructed by the plaintiff. The Trial Court, as well
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as the First Appellate Court, acted illegally in granting an
injunction with respect to plaint A schedule property against
the defendant, who is a co-owner of the property. The learned
counsel also pointed out that the decree of the Trial Court is
slightly confusing since it is not clear when A schedule property
is fully allotted to the share of the plaintiff and any
corresponding extent of land will be allotted to the share of the
defendant in B schedule. The learned counsel also pointed out
that the constructions in B schedule property consist of house
as well as commercial building made by the defendant whereas
the Trial Court has exempted only house from the valuation.
8. The learned counsel for the respondent submitted that the
construction of the house started in the year 1982 and was
continued even after the death of the father and it was
completed only in the year 1992. It would indicate that the
construction is made by the plaintiff alone. That apart, in
Ext.A18 Will, the house is not included. If the house belonged
to the father, the father would have included the house in
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Ext.A18 Will. The learned counsel pointed out that another
house, which is constructed by the father, is specifically
included in Ext.A18 Will, allotting the same to the youngest son
named Balakrishnan. The learned counsel pointed out that the
house situated in plaint A schedule property occupies a major
part of plaint A schedule property, and hence, the division of
plaint A schedule property is not possible when a house is
allotted to the plaintiff without valuation. Since the plaintiff and
his family have been residing in the residential building in
plaint A schedule property, the Trial Court rightly granted an
injunction against the defendant. Even though the Trial Court
has not specifically directed allotment of the extent equivalent
to half of the plaint A schedule property to the defendant from
the plaint B schedule property, the plaintiff does not have any
objection in allotting such area to the defendant from plaint B
schedule property. The defendant could not have any
apprehension with respect to the construction in the plaint B
schedule property since the plaintiff has not made any claim
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with respect to the constructions in plaint B schedule property.
No decree is granted with respect to the constructions in plaint
B schedule property.
9. I have considered the rival contentions.
10. The Trial Court as well as the First Appellate Court have
specifically entered a finding that it is the plaintiff who has
constructed the building in the plaint A schedule property. As
rightly pointed out by the learned counsel for the respondents,
admittedly, the construction was started in the year 1982 and
the same was completed in the year 1992. The father of the
parties died in the year 1987. The construction continued even
after the death of the father. There is no evidence before the
Court that the house was constructed by the father. If the
residential building in plaint A schedule property was
constructed by the father, the father would have included the
same in Ext.A18 Will. Ext.A18 Will shows that another house
belonging to the father is included in the Will and the same is
allotted to the youngest son - Balakrishnan. Hence, the finding
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of the Trial Court as well as the First Appellate Court that it is
the plaintiff who has constructed the building in the plaint A
schedule property could not be said to be illegal.
11. It is true that the injunction cannot be granted against a co-
owner of a property. But, in the present case, as per the Trial
Court judgment, the entire A schedule property, including the
building, is allotted to the plaintiff. Considering this allotment,
the grant of injunction in favour of the plaintiff in
O.S.No.563/1996 could not be said to be illegal.
12. With respect to the division of the properties also, as rightly
pointed out by the learned counsel for the appellant, there is a
little bit of ambiguity in the Preliminary Decree passed by the
Trial Court. The Trial Court has not specifically directed
allotment of the extent equivalent to half of the plaint A
schedule property to the defendant from the plaint B schedule
property. But the direction to allot the extent equivalent to half
of the plaint A schedule property to the defendant from the
plaint B schedule property is implicit in the Preliminary Decree.
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The Trial Court has specifically directed to divide the plaint
schedule properties equally and allotment of one half to the
plaintiff and one half to the defendant. There is further
direction to allot the entire plaint A schedule property to the
plaintiff. It necessarily means that the defendant is entitled to
an extent equivalent to the half of Plaint A schedule property
from plaint B schedule property over and above the normal half
share of the defendant in Plaint B schedule property. The
parties do not dispute the fact that both plaint A and B schedule
properties have the same centage value. Going by the
submissions made by the learned counsels on both sides, the
said ambiguity can be avoided by making a clarification by this
Court.
13. Accordingly, I clarify that on account of the allotment of the
entire plaint A schedule property to the plaintiff in which the
defendant is having half share, the defendant is entitled to an
extent equivalent to the half of Plaint A schedule property from
plaint B schedule property over and above the normal half
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share of the defendant in Plaint B schedule property and that
all the constructions in plaint B schedule property are excluded
from the valuation.
14. The questions of law framed in this appeal do not arise in these
appeals, and hence, both these Appeals are dismissed with the
aforesaid clarification.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
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