Partly allowed

Khadeeja @ Kayya and Others v. Haleema

Kerala HC24 Feb 2016RSA/824/2010

Case brief

AI extract

What is this about?

This second appeal challenged the dismissal of an application for reserving premises. The court held that where no interim order interdicted parties from improving suit properties, the third defendant was entitled to reservation for the building he constructed, even if done during the suit. The final decree was modified to allot the building exclusively to him.

What did the court decide?

The second appeal was allowed in part. The final decree was modified to direct that the building in plot A be allotted exclusively to the third defendant, who would pay no amount to other sharers exce

Khadeeja @ Kayya and Others Vs Haleema — 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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WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937

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RSA.No. 824 of 2010 ( )

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AGAINST THE JUDGMENT & DECREE IN AS 5/2008 OF ADDL. DISTRICT COURT, NORTH PARAVUR DATED 31-3-2010 AGAINST THE ORDER IN IA NO. 1553/2004 IN OS.NO. 263/1995 AND OS NO. 263/1995 OF MUNSIFF COURT, ALUVA DATED 31-10-2007

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APPELLANTS IN RSA/APPELLANTS IN AS/RESPONDENTS IN I.A./DEFENDANTS

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--------------------------------------------------------------------------------------------------------------IN SUIT :

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1. KHADEEJA @ KAYYA,

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W/O. LATE ABDU AHAMMED,

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THEKKEKUNNATHU PUTHENPURAYIL, KUZHIVELIPADY

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EDATHALA KARA, ALUVA EAST VILLAGE, PIN – 683 101.

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2. SAINABA,

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D/O. -DO-, RESIDING IN -DO- -DO- -DO-

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3. HASSAN, S/O. -DO-, RESIDING IN -DO- -DO- -DO-

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4. ABDUL KAREEM,

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S/O.-DO-, RESIDING IN -DO- -DO- -DO-

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BY SENIOR ADVOCATE SRI.S.V.BALAKRISHNAN IYER

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BY ADVS.SRI.P.B.KRISHNAN

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SRI.R.SURAJ KUMAR

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SMT.GEETHA P.MENON

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SRI.P.M.NEELAKANDAN

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RESPONDENT IN RSA/RESPONDENT IN AS/PETITIONER IN I.A/PLAINTIFF IN SUIT :

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HALEEMA, W/O.MAKKAR, PULIMOOTTIL HOUSE, KUZHUVELIPADY, EDATHALA KARA, ALUVA EAST VILLAGE PIN – 683 101.

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BY ADV. SRI.V.K.VEERAVUNNY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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R.S.A.No.824 of 2010

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-----------------------------------------------Dated this the 24^th day of February, 2016

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JUDGMENT

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The defendants in a suit for partition are the appellants in this second appeal filed challenging the final decree in the suit.

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Partition was sought in respect of five items of properties described in the plaint A to E schedules. The trial court found that the properties described in schedules A and C to E to the plaint are partible and consequently a preliminary decree was passed in respect of the said properties. As per the preliminary decree, the plaintiff is entitled to 7/48 share, the first defendant is entitled to 6/48 share, the second defendant is entitled to 7/48 share and

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R.S.A.No.824 of 2010

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defendants 3 and 4 are entitled to 14/48 share each. Though the third defendant claimed reservation in respect of the building constructed by him in the plaint C schedule property, the said claim was not considered by the court at the preliminary decree stage. Instead, it was directed in the preliminary decree that the mesne profits and equities and reservations claimed by the parties will be considered at the final decree stage. Later, the plaintiff applied for passing of the final decree in terms of the preliminary decree. In the final decree proceedings, the court appointed an Advocate Commissioner, who, in turn submitted Exts.C1 report and C1(a) and C1(b) plans, after effecting partition. Among the said plans, Ext.C1(a) plan pertains to the plaint A schedule property and Ext.C1(b) plan pertains to the plaint C to E schedule properties. As far as the plaint C to E schedule properties are concerned, the Advocate Commissioner valued plot A in Ext.C1(b) plan allotted to the third defendant at the rate of Rs.8000/- per cent and the

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R.S.A.No.824 of 2010

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remaining plots at the rate of Rs.2000/- per cent. In the final decree proceedings, the third defendant filed I.A.No.1553 of 2004 claiming reservation in respect of the building in plot A in Ext.C1(b) plan allotted to him. In support of the said interlocutory application, the third defendant gave evidence as DW1. He has also examined four witnesses on his side as Dws.2 to 5. In addition, he has produced 11 documents and marked the same on his side as Exts.B1 to B11. The said application was rejected by the final decree court. Thereupon, final decree was also passed in accordance with the report and plans submitted by the Advocate Commissioner. The defendants challenged the final decree in appeal. The grievance voiced by the defendants in the appeal was against the decision the trial court in declining the claim for reservation raised by the third defendant. The appellate court took the view that since the building has been constructed during the pendency of the suit, no reservation can be claimed in respect of the

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R.S.A.No.824 of 2010

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same and consequently dismissed the appeal. Aggrieved by

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the said decision of the appellate court, the defendants have come up in this second appeal.

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Heard the Senior Counsel for the appellants.

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The grievance of the defendants concerns the

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decisions of the courts below on the claim for reservation raised by the third defendant. As such, the following question was formulated for decision in the second appeal.

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“In the absence of any case for the plaintiff in the final decree application that it was she who put up the residential building in the plaint C schedule property or that it was not the third defendant who put up the building, should not the building be allotted to the third defendant without valuation, even if part of the completion of the building was after suit?”

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As noted above, the claim for reservation raised

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by the third defendant is that the building in plot A to Ext.C1

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(b) plan shall be allotted to him as it was constructed by him. The third defendant who gave evidence as DW1

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R.S.A.No.824 of 2010

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categorically deposed in his chief examination that the building in question has been constructed by him. Ext.B1 produced by the third defendant is a sketch prepared by the carpenter who designed the building in question. Ext.B2 is few pages of a diary maintained by the third defendant which indicate payment of remuneration to workers engaged for construction. Ext.B3 is the power allocation issued to the third defendant from the Kerala State Electricity Board in respect of the building in question. Ext.B5 is the receipt evidencing payment of money for the joineries purchased by the third defendant. Ext.B6 is the purchase bill of an electrical motor. Ext.B9 is the communication in the name of the third defendant in respect of the telephone connection in the building in question. Ext.B10 is the certificate issued by the FACT Employees Cooperative Credit Society Ltd stating that the third defendant has availed a loan of Rs.1,30,000/- from the said society on 6.2.2004. Ext.B11 is another certificate issued by the

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R.S.A.No.824 of 2010

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Secretary of FACT Employees Provident Fund to the effect that the third defendant has availed a housing loan of Rs.2,16,300/-from the said organization. DWs.2 to 5 are a few among the workers engaged by the third defendant for the construction of the building in question. All of them deposed in tune with the case set up by the third defendant. I am not attempting a detailed discussion of the evidence tendered by the third defendant to establish his claim as there was no attempt at all on the part of the plaintiff to establish that the building in question is not one constructed by the third defendant. There was no suggestion to the third defendant that the building is not one constructed by him. Instead, the attempt of the plaintiff was only to establish that the building has been constructed by the third defendant during the pendency of the suit. In the circumstances, it can be safely taken that the building in the property allotted to the third defendant was one constructed by the third defendant. Then the question is

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R.S.A.No.824 of 2010

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whether the reservation claimed by the third defendant in respect of the building be turned down merely for the reason that the same was constructed during the pendency of the suit. According to me, in so far as there was no interim order in the proceedings interdicting the parties from improving the suit properties pending suit, it cannot be said that a person who has improved a portion of the suit property is not entitled to claim reservation in respect of the improvements made by him. In the said view of the matter, according to me, both the courts below went wrong in holding that the third defendant is not entitled to the reservation claimed in respect of the building in plot A to Ext.C1(b) plan. The issue formulated for decision is thus answered in favour of the appellants.

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The learned counsel for the appellants conceded that the appellants 1, 2 and 4 who are entitled to the benefit of the higher valuation given by the Advocate Commissioner in respect of plot A allotted to the third

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R.S.A.No.824 of 2010

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defendant as per the final decree do not want the said benefit from the third appellant. This submission is recorded.

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In the result, the second appeal is allowed in part and the impugned final decree is modified directing that the building in plot A to Ext.C1(b) shall be allotted to the third defendant exclusively and that the third defendant is not liable to pay any amount to the other sharers except the plaintiff on account of the higher valuation of the said plot. All the interlocutory applications in the appeal are closed.

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P.B.SURESH KUMAR, JUDGE.

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smm

Khadeeja @ Kayya and Others v. Haleema

Case brief

What is this about?

What did the court decide?

Khadeeja @ Kayya and Others v. Haleema

Case brief

What is this about?

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