Allowed

Rajeswary v. Chellappan

Kerala HC8 Apr 2019OP(C)/1268/2011

Case brief

AI extract

What is this about?

In a partition suit where the Supreme Court had confirmed the setting aside of plaintiffs' title deed, the High Court allowed the original petition, set aside the District Court's injunction granting possession, and confirmed the Sub Judge's earlier dismissal of the injunction application.

What did the court decide?

The Original Petition was allowed; the impugned judgment of the District Court setting aside the dismissal of the injunction application was set aside; the order of dismissal of the injunction applica

Rajeswary Vs Chellappan — Partition | Kerala HC (2019)

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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 ASHOK MENON

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MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941

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OP(C).No. 1268 of 2011

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AGAINST THE ORDER/JUDGMENT IN CMA 7/2010 of DISTRICT COURT & SESSIONS COURT,THODUPUZHA DATED 06-01-2011

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PETITIONER/RESPONDENTS 3, 4, 6, 7 & 8:

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1 RAJESWARY, D/O VETTILAPAI, KUNNATHU MADAM, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.

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2 RAJAKUMARI, D/O.VETTILAPAI KUNNATHU MADAM, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.

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3 V.RAJA GOPAL, S/O.VETTILAPAI KUNNATHU MADAM, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.

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4 RAMESH KUMAR, S/O.VETTILAPAI KUNNATHU MADAM, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.

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5 V.RAJENDRAN, S/O.VETTILAPAI KUNNATHU MADAM, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.

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BY ADVS. SRI.R.SANJITH SRI.S.GOPAKUMAR SMT.LIJITTA G.MATHEW

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O.P.(C) No.1268 of 2011

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RESPONDENT/APPELLANTS & RESPONDENTS 1,2 & 5:

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1 CHELLAPPAN

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AGED 70 YEARS, S/O CHENNI, PUTHENPURAYIL HOUSE, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.

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2 PRABHAVATHY, W/O.CHELLAPPAN, AGED 66 YEARS, PUTHENPURAYIL HOUSE, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.

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3 VETTILAPAI (DIED) S/O.LATE DAMODARA PAI KUNNATHU MADAM, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.*

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4 N.SUBHADRA BHAI, W/O.VETTILAPAI KUNNATHU MADAM, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.

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5 V.RAVINDRA PAI, S/O.VETTILAPAI KUNNATHU MADAM, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.

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*R3 IS NOTED AS 'DEAD' IN THE CAUSE TITLE, AND LEGAL HEIRS OF DECEASED R3 ARE ALREADY IN THE PARTY ARRAY VIDE ORDER DATED 10.01.2019 IN I.A.6263/2011.

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BY ADV. SRI.ABDUL JALEEL.A

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.02.2019, THE COURT ON 08.04.2019 PASSED THE FOLLOWING:

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O.P.(C) No.1268 of 2011

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JUDGMENT

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The defendants in O.S.No.83/1993 on the file of the

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Sub Court, Thodupuzha, are the petitioners. They are aggrieved by the impugned order dated 06.01.2011 in C.M.A.No.7/2010 of the District Court, Thodupuzha preferred from an order in I.A.No. 619/2009 in the suit. The suit is one for partition filed by the

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plaintiffs seeking separate allotment of share with respect to plaint A-Schedule property, and for other consequential reliefs.

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belonging to the 1^st defendant was settled vide

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settlement deed executed in the year 1971 by him in

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favour of defendants 2 to 8, who are his wife and

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children. At the time of settlement, all his children

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were minors, represented by their mother, the 2^nd

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defendant. The plaintiffs claim that they purchased 5 cents and 10 cents of land out of the property, more

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particularly described in plaint B & C Schedule properties, in the year 1976. The 2^nd defendant, being

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O.P.(C) No.1268 of 2011

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the mother, executed the sale deed as guardian for her

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children. The plaintiffs were made to believe by the parents that they had right to execute the sale deed for the educational expenses of their minor children. Another property was also offered as security for indemnifying any loss on account of any claim that may arise in future. That property is more particularly described as plaint D-Schedule. It is stated that

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after the purchase of the property, the plaintiffs constructed a house expending a sum of Rs.2.5 lakhs. The 1^st plaintiff is a retired Class IV employee and he

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had availed a loan from the Department for the construction of the house.

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Defendants 3 and 4 filed O.S.No.56/1984 before the Munsiff's Court, Thodupuzha against the plaintiffs in this suit and the remaining defendants seeking to set aside the sale deed with respect to B & C Schedule properties contending that the sale was not for family necessity as alleged and for partition and delivery of property. The other defendants also supported the plaintiffs in that suit. The plaintiffs herein took up

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O.P.(C) No.1268 of 2011

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a defence that even if the sale is found to be

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unsustainable, the entire property, having an extent of three acres, obtained by defendants 2 to 8, be partitioned and B & C Schedule properties be allotted to the share of defendants 2 to 5. However, the Munsiff's Court vide Ext.P8 judgment held that equity cannot be worked out in that suit and decreed the suit, setting aside the title deed of the plaintiffs herein.

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It was in consequence to that, that the plaintiffs filed the present suit for partition, including the entire extent of property belonging to the defendants

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obtained by them as per settlement of 1971. The

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plaintiffs state that defendants 6 and 8 had attained majority and consequent to that three years have elapsed prior to the filing of the suit before the Munsiff's Court. It is pointed out that on 26.04.1976

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the 2^nd defendant gifted 20 cents of land out of the property to the 5^th defendant, which fact was suppressed

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by the defendants in the earlier suit. Defendants 3

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and 4 along with the 1^st defendant executed a sale deed in the year 1985 transferring their properties to the

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O.P.(C) No.1268 of 2011

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8^th defendant. The plaintiffs would contend that the

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final decree proceedings in O.S.No.56/1984 is in

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progress and an Advocate Commissioner has been appointed for effecting partition and they apprehended that they would be dispossessed from B & C Schedule properties, and will cause irreparable injury and loss to them. Hence, in this application the petitioners

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seek a prohibitory injunction to restrain the

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respondents therein from dispossessing the petitioners from the property, assigned to them.

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It is the 8^th respondent, who filed a counter-

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affidavit on behalf of himself as well as other defendants, contending that the suit is not maintainable in view of the judgment in O.S.No.56/1984, which has become final in S.A.No.702/1994 of this Court. As per the judgment in O.S.No.56/1984, the

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plaintiffs have no right to get the property divided in partition. The property was purchased by the

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plaintiffs when the majority of the sharers were minors. Working out equity was also considered by the Court. The defendants 3 and 4 filed a final decree

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O.P.(C) No.1268 of 2011

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application before the Munsiff's Court, which is

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pending. In case, the further proceedings in the

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partition suit is stalled, irreparable injury will be caused to the defendants.

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marked, while Ext.B1 was the document produced for the

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respondents. The trial court rejected the claim of the plaintiffs to get injunction and dismissed

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I.A.No.619/2009. Aggrieved by that order, they

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preferred the C.M.Appeal before the District Court.

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After considering the contentions raised by

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both sides, the impugned order of the trial court was

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set aside and defendants 3 and 4 were injuncted from

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dispossessing from the plaint B and C schedule properties till the disposal of the suit. There was also a direction to the trial court to dispose of the

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suit, at any rate, within a period of six months. It is this order of the District Court stands challenged before this Court.

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Heard both sides and perused the records.

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O.P.(C) No.1268 of 2011

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On going through the records, it is seen that

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this case has a fairly long history. There is no dispute that respondents 1 and 2 here had purchased the property in 1976 by sale deed No.158/76. The defendants in the instant suit had filed O.S.No.56/1984 before the

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Munsiff's Court to get the aforesaid sale deed in

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favour of respondents 1 and 2 set aside. The suit was decreed vide Ext.P8 dated 31.01.1989 and the

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respondents 1 and 2 were given the liberty to realise the value of improvements. That decree was challenged by the plaintiffs therein in A.S.No.58/89 questioning

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the portion of the decree pertaining to the granting of

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value of the improvements to defendants 1 and 2 therein, and A.S.No.64/89 was filed by defendants 1 and 2 challenging the setting aside their title deed. The Addl. District Court, Thodupuzha vide Ext.P9 common judgment dated 28.06.1993, dismissed both the appeals and the decree in O.S.No.56/84 was confirmed. Second

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Appeals were filed before the High Court by both sides as S.A.Nos.298/1994, 312/1994 and 702/1994. All the

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three appeals were dismissed and the decree of the

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O.P.(C) No.1268 of 2011

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trial court and the lower appellate court were

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confirmed vide Ext.P10 decree. Respondents 1 and 2 approached the Honourable Supreme Court by filing

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S.L.A.(Civil) No.21968/2008. But the same was

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dismissed vide Ext.P11 order on 22.02.2010.

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The end result being that, the sale deed,

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which is now relied upon by respondents 1 and 2 to press for a partition of the suit in O.S.No.83/1993 stands set aside and no longer good title for them. In view of the fact that their title deed has been set aside, and stands confirmed finally, even by the Honourable Supreme Court the original decree in O.S.No.56/1984 directing payment of value of

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improvements to respondents 1 and 2 also stands confirmed.

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It is during the pendency of O.S.No.83/1993 that plaintiffs filed I.A.No.619/2009 for injunction restraining the respondents therein from dispossessing

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them from the property. The injunction application was dismissed by the Court below, but the District Court in appeal vide Ext.P1 impugned order dated 06.01.2011 has

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O.P.(C) No.1268 of 2011

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allowed the injunction. In view of the fact that the suit itself will not lie, the petitioners in I.A.No.619/2009 could definitely have not maintained the application for injunction. The title deed on the basis of which they are claiming partition itself will not lie in view of the fact that their title deed has been set aside. Therefore, I find that the learned District Judge was not justified in granting an injunction vide the impugned judgment, and hence it has to be set aside.

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The Original Petition is allowed and the impugned judgment dated 06.01.2011 of the the District Court in C.M.A.No.7/2010 is set aside and the order of dismissal of I.A.No.619/2009 by the Sub Judge in O.S.No.83/1993 stands confirmed. No order as to costs.

Sd/-

ASHOK MENON

JUDGE

dkr

O.P.(C) No.1268 of 2011

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT	P1 COPY OF THE JUDGMENT IN CMA NO.7/2010 DATED 06.01.2011 OF THE DISTRICT JUDGE, THODUPUZHA
EXHIBIT	P2 COPY OF THE PLAINT IN O.S.NO.83/1993 ON THE FILES OF THE SUB COURT.
EXHIBIT	P3 COPP OF THE IA 619/2009 IN OS.83/1993 ON THE FILES OF THE SUB COURT, THODUPUZHA
EXHIBIT	P4 COPY OF THE COUNTER-AFFIDAVIT FILED BY THE
	RESPONDENTS/DEFENDANTS THEREIN IN IA 619/2009 IN OS NO.83/1993
EXHIBIT	P5 COPY OF THE ORDER IN IA.NO.619/2009 IN OS NO.83/93 OF THE SUB COURT, THODUPUZHA
EXHIBIT	P6 COPY OF CMA 7/2010, IA NO.38/2010 IN CMA NO.7/2010
EXHIBIT	P7 COPY OF THE COUNTER-AFFIDAVIT FILED BY THE RESPONDENTS THEREIN
EXHIBIT	P8 COPY OF THE DECREE AND JUDGMENT DATED 31.01.1989 IN OS NO.56/84 OF MUNSIFF'S COURT, THODUPUZHA
EXHIBIT	P9 COPY OF THE JUDGMENT DATED 28.06.1993 OF THE ADDITIONAL DISTRICT JUDGE, THODUPUZHA
EXHIBIT	P10 COPY OF THE DECREE IN S.A.NO.298/94, 312/94 AND 702/94
EXHIBIT	P11 COPY OF THE ORDER DATED 22.02.2010 IN SPECIAL LEAVE TO APPEALS (CIVIL) NO.21968/2008 BEFORE THE HONOURABLE SUPREME COURT OF INDIA.
EXHIBIT	P12 COPY OF THE I.A.86/09 IN O.S.56/84 ON THE FILES OF THE MUNSIFF'S COURT, THODUPUZHA

Rajeswary v. Chellappan

Case brief

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Rajeswary v. Chellappan

Case brief

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