Dismissed

N.Ponnappan v. M.N.Sasidharan

Kerala HC25 Oct 2016RSA/1093/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the appeal against the set-aside of a supplementary preliminary decree. The Court held that questions regarding the precise allotment of shares, including buildings, belong to the final decree stage and affirmed the lower appellate court's direction to the trial court to dispose of such pleas then.

What did the court decide?

Set aside new supplementary preliminary decree; direct trial court to consider all plea regarding allotment in final decree; allow consideration of existing evidence; dismiss appeal.

N.Ponnappan Vs M.N.Sasidharan — Partition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938

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RSA.NO. 1093 OF 2016 (E)

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AGAINST THE JUDGMENT DATED 14-06-2016 IN AS NO.1/2013 OF THE SUB COURT, CHENGANNUR

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AGAINST THE ORDER DATED 19.11.2012 IN I.A. NO.279 OF 2010 IN O.S. NO.2/2007 OF THE MUNSIFF'S COURT, CHENGANNUR

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APPELLANT/1^ST DEFENDANT/1^ST RESPONDENT

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N.PONNAPPAN, AGED 70,

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S/O. NARAYANAN, RANJISHA HOUSE, 45/A, CO-OPERATIVE ROAD, EDAPPALLY, COCHIN-682 024.

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BY ADV. SRI.MANU ROY

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RESPONDENTS/PLAINTIFF/DEFENDANTS NO:2 TO 6:

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1 M.N.SASIDHARAN, MULLUMKALA PADINJARETHIL, MULAKKUZHA MURI, MULAKKUZHA VILLAGE, CHENGANNUR TALUK.

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2 V.N. PONNAMMA, RAJ BHAVAN, PARAKKULAM ROAD, ANGAMALI KARA, ALUVA TALUK, ERNAKULAM.

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3 M.G. SANTHAMMA, RAJ BHAVAN, PARAKKULAM ROAD, ANGAMALI KARA, ALUVA TALUK, ERNAKULAM.

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4 M.N. THANKAMMA, SILPAKAM HOUSE, MUNDAKKAL WEST MURI, KOLLAM MUNICIPALITY, KOLLAM.

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5 M.N. MOHANA RAJ,LEKSHMI DALE, MUNDAKKAL WEST MURI, KOLLAM MUNICIPALITY, KOLLAM.

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6 M.N. RAJU, 66-SREE NILAYAM, ARUKKUTTY GROUND STREET, SIVANANTHAPURAM, SARAVANAM PALLY, COIMBATORE, TAMILNADU.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A.No. 1093 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 25th day of October, 2016

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J U D G M E N T

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The 1^st defendant in O.S. No.2 of 2007 of the

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Munsiff's Court, Chenganuur and the 1^st respondent in A.S. No.1 of 2013 of the Sub Court, Chengannur is

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the appellant herein. O.S. No.2 of 2007 was a suit for partition. A preliminary decree was passed allotting the plaintiff,¹ /7 share of the property. The commission had measured out the property and partitioned the same by metes and bounds. As per the plan, the building in the schedule property was included in the share of the plaintiff and the 1^st defendant. Hence, the plaintiff claimed that if the final decree is passed on the basis of preliminary decree, he will lose a portion of the building. On the above premises, he filed I.A. No.279 of 2010,

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for passing a supplementary preliminary decree, by

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R.S.A. No. 1093 of 2016

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declaring that all the parties are entitled to¹ /7

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share each and to include the entire building towards his share. The defendant has adduced evidence; but no evidence was adduced by the plaintiff. After considering evidence, the trial court allowed the Interlocutory Application in part, by passing supplementary preliminary decree, declaring that all the parties are entitled to¹ /7 share of the schedule property; but the prayer for allotting the entire building to the share of plaintiff was rejected. Hence, aggrieved by the said judgment, the plaintiff had preferred A.S. No.1 of 2013 before the Sub Court, Chengannur. After considering the evidence on record, the appellate court arrived at a finding that question of passing supplementary preliminary decree is to be worked out in the final decree stage only and on that finding the supplementary decree was set aside and the

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R.S.A. No. 1093 of 2016

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-: 3 :-

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plaintiff is allowed to raise all these contentions

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in the final decree stage. The legality and propriety of the aforesaid findings are assailed in this Regular Second Appeal.

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Heard the learned counsel for the

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appellant.

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Going by the impugned judgment, it is seen

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that no appeal is filed against preliminary decree

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and the same has attained finality and an application was filed by the plaintiff, seeking a supplementary preliminary decree to get allotted the entire building in his share. As rightly observed by

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the appellate court, the said question does not arise for consideration during the preliminary decree stage and the same is to be worked out in the final decree stage only. I do not find any illegality or impropriety in the aforesaid finding.

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Needless to say, the trial court went wrong

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R.S.A. No. 1093 of 2016

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-: 4 :-

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by passing a supplementary preliminary decree, by

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reproducing the preliminary decree already passed in the case. In fact, there was no necessity to pass such a supplementary preliminary decree. The Lower Appellate Court is justified in setting aside the supplementary preliminary decree. Suffice it to say, the claim of the parties with respect to allotment of share can be considered in the final decree proceedings. Therefore, the trial court is directed to consider all the pleas of both parties in the final decree proceedings and arrive at just and proper allotment, untrammelled by the impugned judgments under challenge.

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The learned counsel for the appellant submits that the appellant has already adduced evidence with respect to the allotment of house, and

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no fresh evidence need be adduced and he sought for a direction in this respect. It is discernible from

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R.S.A. No. 1093 of 2016

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-: 5 :-

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the judgment passed by the trial court that the

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appellant herein has adduced evidence against the claim of the respondent with respect to the allotment of house. The evidence adduced by the appellant in this respect can be considered in the final decree proceedings, without insisting production of fresh evidence, if he does not want to adduce fresh evidence.

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This Regular Second Appeal is dismissed accordingly.

Sd/-

K. HARILAL,

DST

//True copy// P.A. To Judge

N.Ponnappan v. M.N.Sasidharan

Case brief

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N.Ponnappan v. M.N.Sasidharan

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