Dismissed

Raveendran v. Raghunandanan

Kerala HC10 Mar 2016RSA/668/2013

Case brief

AI extract

What is this about?

This second appeal was dismissed in limine. The court held that the appellant raised no bona fides because the relevant notices and plaint averments regarding the construction of the building were uncontroverted due to the respondents' total lack of appearance or contestation. Consequently, the appellate court's decision to allot the building to the plaintiff was upheld, and the remainder of the p

What did the court decide?

The second appeal was dismissed in limine. All interlocutory applications were closed.

Raveendran Vs Raghunandanan — 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 P.B.SURESH KUMAR

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THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937

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RSA.No. 668 of 2013 (D)

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AS 2/2005 OF 1ST ADDITIONAL DISTRICT COURT, THRISSUR DATED 25-03-2006 IA.139/2003 IN OS.37/2001 OF PRINCIPAL SUBORDINATE COURT, IRINJALAKUDA DATED 20/10/2004

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APPELLANT(S)/1ST RESPONDENT/1ST DEFENDANT/1ST RESPONDENT:

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RAVEENDRAN, AGED 56 YEARS, S/O.AMMANATH RAMAN, EDAKULAM DESOM, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK.

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BY ADVS.SRI.V.BINOY RAM

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SMT.SAJITHA P.SOMAN

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RESPONDENT(S)/APPELLANT/AND RESPONDENTS 2 & 3/PETITIONER & RESPONDENTS 2 & 3 PLAINTIFF/2ND AND 3RD DEFENDANTS/2ND & 3RD RESPONDENTS:

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1. RAGHUNANDANAN, S/O.AMMANATH RAMAN, EDAKULAM DESOM, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK-680 688.

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2. LALITHAMBIKA,

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D/O.RAMAN, W/O.V.R.PRABHAKARAN VADAKKEPURAKKAL HOUSE ANCHERI VALARIKKAVU DESOM THRISSUR CORPORATION, PIN-680 006.

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3. LATHIKAMBIKA, D/O.RAMAN, AMMANATH HOUSE, W/O.V.K.SASI, VAZHEKKATTIL HOUSE, VENGINISSERY, SNEHA NAGAR, PARALAM POST, THRISSUR CORPORATION, PIN-680 563.

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R1 BY ADVS. SRI.K.S.RAJESH

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SRI.M.SHAJU PURUSHOTHAMAN

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 668 of 2013

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APPENDIX

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PETITIONER(S)' ANNEXURS

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A1TRUE COPY OF THE PRESCRIPTION DATED 14/1/2005 ISSUED FROM ADITYA ORTHOPAEDIC AND TRAUMA CENTRE, TUMKUR

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A2TRUE COPY OF THE PRESCRIPTION DATED 20/2/08 ISSUED FROM ADITYA ORTHOPAEDIC AND TRAUMA CENTRE, TUMKUR

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A3TRUE COPY OF THE REFERENCE LETTER DATED 15/6/2009 ISSUED FROM ADITYA ORTHOPAEDIC AND TRAUMA CENTRE, TUMKUR

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A4TRUE COPY OF THE PRESCRIPTION DATED 18/6/2009 ISSUED FROM BHARATHI HOSPITAL, BANGALORE

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A5TRUE COPY OF THE PRESCRIPTION DATED 8/4/11 ISSUED FROM BHARATHI HOSPITAL BANGALORE.

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RESPONDENT(S)' ANNEXURES

NIL.

/ TRUE COPY /

P.S. TO JUDGE

P.B.SURESH KUMAR, J.

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R.S.A. No.668 of 2013

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Dated 10^th March, 2016.

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J U D G M E N T

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The final decree in a suit for partition is under challenge in this second appeal. The first defendant in the suit is the appellant.

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The suit property measuring 10 cents belonged to the father of the plaintiff as also the defendants, namely, Raman. Raman obtained the suit property by virtue of Ext.A1 purchase certificate towards his kudikidappu. According to the plaintiff, on the death of Raman, ¼ share in the suit property devolved on him and the suit was filed for partition of the said ¼ share. It is pleaded by the plaintiff in the plaint that he had constructed the building in the suit property in the place of the hut originally existed therein. The defendants did not contest the suit. Consequently, a preliminary decree was passed in the suit as prayed for by the plaintiff. The reservation claimed by the plaintiff in respect of the building in the suit property was

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RSA No.668 of 2013

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left open to be considered at the final decree stage. Later, the plaintiff filed an application for passing of the final decree. The defendants did not contest the application for passing of the final decree also. The Advocate Commissioner appointed by the court in the final decree proceedings effected partition. Ext.C1 is the report of the Advocate Commissioner and Ext.C2 is the plan appended to Ext.C1 report. Though there was no contest in the final decree proceedings, the final decree court did not accept the reservation claimed by the plaintiff in respect of the building in the property. Consequently, the final decree was passed allotting 2½ cents of property to the plaintiff as shown in Ext.C2 plan in blue shade. Since the defendants did not pay court fee for passing of preliminary decree in their favour in respect of their share, the remaining 7.5 cents of property and the building therein was set apart towards the share of the defendants. Having regard to the value of the building in the said property, the defendants were directed to pay to the plaintiff a sum of Rs.37,724/- towards o welty . The plaintiff challenged the final decree in appeal. The only

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RSA No.668 of 2013

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contention raised by the plaintiff in the appeal was that the trial court should have accepted his claim for reservation in respect of the building in the suit property. The respondents have not entered appearance in the appeal also. Prior to the institution of the suit, the plaintiff has sent a notice to the defendants calling upon them to partition the property and give separate possession of his ¼ share in the property as also the building. In the said notice, it was categorically stated by the plaintiff that the building in the suit property was constructed by his father making use of the money sent by him from abroad. The appellate court noticed that there was no reply by the defendants to the said notice. Likewise, in paragraph 5 of the plaint, the plaintiff has categorically stated that he was working in a Gulf country and that the house in the suit property was constructed making use of his money and further that he alone had the required source in the family to construct the building. Paragraph 5 of the plaint reads thus :

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“In the above said notice the plaintiff has mentioned that the terrace house that is constructed in the property was done at his

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RSA No.668 of 2013

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expenses. At the time of the construction of the building the plaintiff was in Gulf countries, that is, in Abu-Dhabi. He had sufficient resource for money, and he had sent such money to home by draft and the construction was made by that money. The defendants had no financial ability to contribute their share of the money to construct the building. Therefore, when the above said notice demanding partition was sent, the plaintiff has mentioned that actually the building has to be allotted to his share on partition. If the defendants are not disputing the true facts, building may be allotted to the plaintiffs share without valuing the same and the landed property alone may be partitioned by metes and bounds.”

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The appellate court also noticed that the said averments stand uncontroverted. In the circumstances, the appellate court held that the building in the suit property has been constructed by the plaintiff. Consequently, the appellate court set aside the decision of the trial court and remitted the application for passing of the final decree for fresh disposal with a direction to remit the report to the Advocate Commissioner to allot the building in the plaint schedule property to the plaintiff without valuing the same and with the appurtenant land for its convenient use and to allot the remaining property to the share of the defendants and also to award requisite amount by way of

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RSA No.668 of 2013

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owelty to the respondents. The first defendant is aggrieved by the said decision of the appellate court and hence this second appeal.

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Heard the learned counsel for the appellant.

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The learned counsel for the appellant contended

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that the building in the suit property has been constructed by him and that the building permit for the same has been obtained in his name. He also submitted that there are documents to indicate that he was residing in the said building. As such, according to the learned counsel, the finding rendered by the appellate court that the building in the suit property has been constructed making use of the money sent by the plaintiff to his father is incorrect and unsustainable.

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I do not find any merit in the submissions made by the learned counsel for the appellant. Ext.A4 in the suit is the notice sent by the plaintiff to the defendants before the institution of the suit. As noted by the appellate court, the specific recital in Ext.A4 lawyer's notice that the building in the property has been constructed by his father making use of the

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RSA No.668 of 2013

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money sent by him from abroad has not been refuted by the defendants by sending reply to the said notice. Likewise, the specific averments in paragraph 5 of the plaint as to the ownership of the building in the suit property stands uncontroverted. As such, the appellate court cannot be faulted for having rendered the finding that the building in the property has been constructed by the plaintiff. Further, as noted above, the first defendant has not contested the suit or the final decree application. He has also not contested the appeal preferred by the plaintiff against the final decree passed in the suit. As such, I do not find any bonafides in the contentions raised by the first defendant in this appeal. The second appeal, in the circumstances, is devoid of merits and the same is dismissed in limine . All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Raveendran v. Raghunandanan

Case brief

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Raveendran v. Raghunandanan

Case brief

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