SELVI versus GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS. on 15 May 2018

510

SUPREME COURT REPORTS[2018] 6 S.C.R. 510

[2018] 6 S.C.R.

A

SELVI

v.

GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.(Civil Appeal No. 21834 of 2017)

B

MAY 15, 2018

[R. BANUMATHI AND L. NAGESWARA RAO, JJ.]

Mortgage – Redemption of – Suit for redeeming the mortgagedproperties, filed by plaintiffs inter alia against Respondent-DefendantNo.2 – Respondent resisted the suit inter alia contending that propertyCin old Survey No.988 belongs to him– Trial court passed the finaldecree holding that the plaintiffs are entitled to redeem the suitproperty and that old Survey No.988 which the respondent claimedownership of, cannot be exempted from the suit property –Respondent filed appeal, which was dismissed by First AppellateDCourt – High Court allowed the second appeal of respondent – Onappeal, held: In view of the objections repeatedly filed by therespondent reiterating that old Survey No.988 should be excludedfrom the properties to be partitioned, the trial court ought to haveheld an enquiry and directed the parties to adduce evidence as tothe right claimed by the respondent in old Survey No.988 – Though,Ethe parties are fighting litigation for more than five decades, but inorder to meet the ends of justice, judgment of High Court and thecourts below are set aside and matter remitted to trial court fordeciding it afresh – Directions issued – Code of Civil Procedure,1908 – s.97.FAllowing the appeal, the Court HELD: 1.1 An Advocate-Commissioner was appointed tomeasure the suit properties according to the boundariescontained in the documents filed in the suit and to locate theproperties contained in the Survey numbers 990, 983-A and 988.GRight from the beginning, while filing the written statement andalso the objections filed to the Commissioner’s Report, therespondent-second defendant contended that old Survey No.988(R.S. No.123/9) belongs to him. [Paras 9, 10] [515-F; 516-A-B]

H

1.2 The Commissioner filed its Preliminary Report on whichthe respondent filed detailed objections stating that theCommissioner, while locating Survey No.988, did not follow theboundary descriptions contained in the documents. Based on theobjections filed by the respondent, the Advocate-Commissionerrevisited the property and filed his Report noticing Survey No.988falls within the description of the suit properties. [Paras 11, 12][516-C-D; 517-B-C]

1.3 Appellant-third plaintiff filed detailed objections to theCommissioner’s Report stating that Survey No.988 cannot beexcluded from the properties to be partitioned. The Respondentalso filed detailed objections to the Commissioner’s Report.Considering the objections repeatedly filed by the respondentreiterating that Survey No.988 falls within the description of thesuit properties and that should be excluded from the propertiesto be partitioned, the trial court ought to have held an enquiryand directed the parties to adduce evidence as to the right claimedby the respondent in old Survey No.988 (R.S. No.123/9) and whatwas the basis on which the possession of the respondent wasupheld in the proceedings under Section 145 Cr.P.C. and in CRPNo.45 of 1992. [Paras 13, 14] [517-E-F; 518-D]

1.4 As per Section 97, CPC, where any party aggrieved bya preliminary decree passed after the commencement of this Codedoes not appeal from such decree, he shall be precluded fromdisputing its correctness in any appeal which may be preferredfrom the final decree. Of course, the respondent did not file theappeal against the preliminary decree challenging its correctness.But as pointed out by the respondent, in the description of thesuit properties, Survey No.988 was not shown. As pointed out bythe High Court, in para No. (13) of the written statement,respondent clearly averred that he is the owner of the adjoiningproperty in Survey No.988 in which the plaintiffs and the otherdefendants have no right and that the third defendant is residingin a building belonging to the respondent in the said Survey No.988on rental basis. In spite of the objections raised by the respondentas to the boundaries and description of the suit properties andalso claiming right in Survey No.988 stated to be falling withinthose boundaries, the plaintiffs did not amend the description of AB

C

D

E

F

G

H

Athe suit properties by bringing in Survey No.988 in the suitproperty. It was in this context, in their written statement, thedefendants have stated that “the defendants have no objectionsto surrender the mortgage right in respect of Plaint B Scheduleitems…..”. [Para 16] [518-G-H; 519-A-C]

B1.5 Two Commissioners earlier appointed have inspectedthe suit properties and filed their Reports stating that the suitproperties were not identifiable. Only when the Advocate-Commissioner inspected the suit property, he noticed thatSurvey No.988 was falling within the description of theboundaries stated in the Plaint. Since the description of the suitCproperty did not contain Survey No.988, the fact that therespondent did not prefer appeal against the preliminary decree,cannot be put against the respondent. [Para 17] [519-D-E]

1.6 In view of the stand taken by the respondent that he isentitled to the adjoining property in Survey No.988 by virtue ofDthe sale deed of the year 1951 and the consistent objections raisedby him to the Commissioner’s Report, in the final decreeproceedings, the trial court ought to have directed the parties toadduce evidence to enable the court to ascertain the truth as tothe correct description of the suit property and also the rightEclaimed by the respondent in Survey No.988. The parties arefighting litigation for more than five decades; but in order to meetthe ends of justice, the impugned judgment of the High Courtand the courts below are liable to be set aside and the matter beremitted to the trial court for deciding the matter afresh. It ismade clear that after the matter is remitted to the trial courtFbased on his affidavit, second plaintiff is not entitled to put forthany claim. It is also made clear that the locus of third plaintiff topursue the matter also shall not be called for question nor bechallenged. [Para 18, 19] [519-G-H; 520-G-H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 21834Gof 2017.From the Judgment and Order dated 13.04.2006 of the High Courtof Madras at Madurai Bench in S. A. No. 255 of 2005

V. Prabhakar, Ms. Jyoti Parasher, N.J. Ram Chandar,Mrs. Revathy Raghavan, Advs. for the Appellant.H

M. S. Ganesh, Sr. Adv., R. Ayyam Perumal, K. Seshachary,M. Gireesh Kumar, Ankur S. Kulkarni, Sriram P., Vijay Kumar, K. V.Vijaykumar, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. This appeal arises out of the judgmentdated 13.04.2006 passed by the High Court of Madras at Madurai Benchin Second Appeal No.255 of 2005 in and by which the High Court setaside the final decree passed by the trial court and affirmed by the FirstAppellate Court by holding that the appellant/plaintiff cannot lay a claimin respect of Survey No.988 which the first respondent/second defendantclaims entitled to.

2. Brief facts as seen from the Plaint averments are as follows:-

The suit properties that is plaint A Schedule property and PlaintB Schedule property belonged to Kali Pillai, Krishna Pillai and others ofVarukkapilavila Veedu, which was outstanding on a mortgage. On27.12.1088 M.E.(11.08.1913) Kali Pillai, Krishna Pillai, ChampakakuttyPillai alias Bhagvathi Pillai and Kalyani Pillai and Lakshmi Pillaimortgaged the said properties to Kutti Bhagvathi for Rs.785/- (Rs.109.04).The mortgage was an usufructuary with Kuzhikkanam for a period oftwelve years. While Kutti Bhagvathi was enjoying it, she assigned hermortgage right to Eravi Pillai Parvathi Pillai from whom ParameswaranPillai of Kavavilai got an assignment under deed No.1231 of 1107 andcame into possession. Parameswaran Pillai sub-mortgaged portion ofPlaint B Schedule property to Kesava Pillai Narayana Pillai which righthas become vested in the second Defendant. The fourth Defendant hasalso right in the suit mortgage. The third Defendant has also right in thesuit mortgage. The third Defendant has leasehold right over some portionof B Schedule property under Parameswaran Pillai. The first Defendantis in possession of A Schedule property as the heir of the deceasedassignee mortgagor Parameswaran Pillai. The mortgagors 1 and 2 diedand their right devolved on the legal heirs of mortgagors - Kalyani Pillaiand her mother Lakshmi Pillai. The first Plaintiff - Kalyani Pillai inheritedthe equity of redemption of the plaint property on the death of her motherLakshmi Pillai. The first Plaintiff is thus the mortgagor by derivative titlewho is entitled to redeem the mortgage from Defendant Nos.1 to 4. Inso far as her mortgage rights, the first plaintiff-Kalyani Pillai executedan agreement of sale on 27.12.1968 in favour of the second Plaintiff - A

BC

DEF

G

H

AVasudevan Pillai with respect to the mortgage property and as such hehas joined as the second Plaintiff. Suit Properties within the statedboundaries are said to be situated in respect of A Schedule property inSurvey numbers 990 - extent of 85 cents and Survey No.983/12A - 1acre and 35 cents; Survey No.983/13A - 5 acres 96 cents and SurveyNo.983/14A – 0.64 acres in respect of B schedule property.B

3. The respondent-second defendant who is the main contestingdefendant resisted the suit inter-alia contending that he is in possessionof Survey No.983/14A for which the appellants/plaintiffs have no rightof possession. The second defendant-Gopalakrishnan Nair inter-aliafurther pleaded that the property in old Survey No.988 belongs to himCand the third defendant is residing in a building situated in Survey No.988on rental basis.

4. The parties went for trial. Upon consideration of evidence, thetrial court passed the preliminary decree for partition on 07.08.1976 holdingthat the plaintiffs-Kalyani Pillai and Vasudevan Pillai are entitled to redeemDand recover possession of 7.40 acres from defendant Nos.1 to 4 bydepositing of mortgage money of Rs.109.81Paise. The trial court passedthe preliminary decree for partition to the said extent of 7.40 acres in thesuit property to which the plaintiffs are entitled for partition and separatepossession.E

5. First plaintiff - Kalyani Pillai executed an agreement for saleon 27.12.1968 in favour of the second plaintiff-Vasudevan Pillai. Thesecond plaintiff-Vasudevan Pillai assigned the above said agreement infavour of one Rajayyan on 05.08.1978 and the said Rajayyan assignedthat agreement in favour of third plaintiff-Selvi, wife of Devaraj onF10.03.1983. In the final decree proceedings, third plaintiff-Selvi gotherself impleaded in the suit by filing a separate petition. All the threeplaintiffs filed final decree application in I.A. No.120 of 1985 in OSNo.1516 of 1969. The trial court by its judgment dated 19.09.2001 passedthe final decree for partition holding that Survey No.988 which the seconddefendant claims cannot be exempted from the suit property. In the finalGdecree, the trial court held that the appellant/plaintiff is entitled to theportion as “ABCDEFXVUTSRQKLMNOP” marked in Exhibit C.2,entitled to the possession and that the plaintiffs are entitled to redeemthe suit property. The Court further directed that the legal heirs of thirddefendant-Krishna Pillai are entitled to get a sum of Rs.2,64,607.50 asHdevelopment charges of the suit property.

6. Being aggrieved by the final decree, the second defendantGopalakrishnan Nair preferred an appeal in AS No.6 of 2002 on the fileof Sub-court, Kuzhithurai. The First Appellate Court dismissed the appealvide its judgment dated 20.08.2004 holding that no appeal had beenpreferred from the preliminary decree dated 07.08.1976 by the seconddefendant and that he cannot challenge the correctness of the preliminarydecree in the final decree proceedings. The First Appellate Courtconfirmed the final decree passed by the trial court and dismissed theappeal observing that Gopalakrishnan Nair cannot have any valid objectionfor the final decree in favour of the plaintiffs.

7. Being dissatisfied with the concurrent findings, the firstrespondent preferred appeal in SA No.255 of 2005 before Madras HighCourt at Madurai Bench. The High Court proceeded to hold that thefirst respondent/second defendant in his written statement raised a pleaof ownership in respect of Survey No.988 and that by its order dated27.04.1998, the trial court also directed exclusion of the property in SurveyNo.988. After referring to the order of the trial court dated 27.04.1998and the Commissioner’s Report, the High Court held that the suit propertyin the preliminary decree does not cover Survey No.988 and was removedfrom the ambit of the suit property by the trial court and on those findings,the High Court allowed the second appeal. The High Court held that thefinal decree will stand as it is, excluding Survey No.988. Being aggrieved,the appellant/plaintiff is before this Court.

8. We have heard the learned counsel for the parties at length andperused the impugned judgment and carefully considered the evidenceand materials placed on record.

9. Right from the beginning, while filing the written statement andalso the objections filed to the Commissioner’s Report, the seconddefendant-Gopalakrishnan Nair has been contending that old SurveyNo.988 (R.S. No.123/9) belongs to him. In his objections filed in I.A.No.120 of 1985, the second defendant-Gopalakrishnan Nair raised thefollowing objections:- “……R.S. No.123/9 which is old survey No.988 belongs to thesecond defendant. The title of the second defendant to R.S.No.123/9 was declared and the defendants 9 to 11 who are theLRs of the third defendant are restrained by injunction fromdisturbing the quiet and peaceful possession of the land and treesexcluding the building and courtyard…….”

A

B

C

D

E

F

G

H

A

10. Mr. Raveendran Nair, Advocate-Commissioner was appointedto measure the suit properties according to the boundaries contained inthe documents filed in the suit namely Exts. A.1, A.2, B.1, B.2 and tolocate the properties contained in the Survey numbers 990, 983-A and988. In the said order dated 27.04.1998, the trial court directed exclusionof Survey No.988 as seen from the following:- B

“…..Further, he is directed that after measuring and locating thesuit properties viz., in Survey No.990 and 983-A and the seconddefendant’s property which is situated in Survey No.988, theCommissioner may allot the plaintiff’s share of 7 Acres 40 centsboth in Survey No.990 and 983 or in any of the above two surveyCnumbers….”

11. The Commissioner filed its Preliminary Report on 17.02.1999,for which the second defendant-Gopalakrishnan Nair filed detailedobjections stating that the Commissioner, while locating Survey No.988,did not follow the boundary descriptions contained in the documents.DRelevant portion of the objections filed by the second defendant-Gopalakrishnan Nair inter alia reads as under:- “…….

4. The Commissioner did not locate the Plaint Schedule surveyEnumbers i.e., Survey Nos.990 and 983 and the other SurveyNumber 988 as directed by this Hon’ble Court.

5. The Commissioner failed to understand that a partition isimpossible in this suit without locating the plaint schedule surveynumbers 990 and 983.

F

6. It is seen from the report of the Commissioner that he is moreparticular and interested in locating Survey No.988 alone just toconfuse matters. The various documents filed by this Defendantrelating to his title to Survey No.988 and ignored by theCommissioner. While locating Survey No.988, the Commissionerdid not follow the descriptions contained in the ancient documentsfiled by this defendant before this Hon’ble Court. But he simplyfollowed documents for bits of land brought into existence afterthe suit and registered in Kerala at the instance of the Plaintiff.

G

8. …..This Thottampara Nilam lies west of the road andcomprised in Survey No.1025. The portion lies west of the road H

also forms part of Survey No.988. The portions shown asThottampara Nilam and Muriyaravilakam are also portions ofSurvey No.988. The Commissioner did not locate the southernlimit of Survey No.988……

…..”

12. Based on the objections filed by the second defendant,Mr. Raveendran Nair, Advocate-Commissioner revisited the propertyand filed his Report noticing Survey No.988 falls within the descriptionof the suit properties. The relevant portion of the Report of theCommissioner dated 26.04.1999 reads as under:- “….While the Hon’ble Court appointing me as Commissioner, itis specifically ordered to exclude old Survey No.988. Since itbelongs to second defendant, when this plot is excluded frompartition the share of the plaintiff will come in file No.123/5, 6,535/1, 2, 535/4 and the Plot B, B1, B2 and B3.

The old survey number of the properties are 983/12, 13, 14 and988 of Mancode Village. Out of the above survey numbers, theplaintiff is entitled on the basis of boundaries the plot shownA,B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,A, is the plot having an area of7 Acres 40 Cents.

……”

13. Appellant-Selvi filed detailed objections to the Commissioner’sReport stating that Survey No.988 cannot be excluded from the propertiesto be partitioned. Second defendant-Gopalakrishnan Nair also fileddetailed objections to the Commissioner’s Report on 04.11.1999, as under:- “…..

4. The Commissioner has wrongly shown ‘B’ Schedule Propertyinclusive of the whole by Survey Nos.988 without identifying thesuit properties i.e. Survey Nos.983A and 990. Old Survey No.988correlates to R. Survey No.123/9 having an extent of 3 Acres 39Cents in the exclusive property of this defendant which is notavailable to a partition. In this aspect, the Commissioner has noteven taken note of the various documents filed by this defendant.

5. The Commissioner exceeded his authority in allotting the shareof the plaintiff inclusive of the whole Survey No.988 while this A

B

C

D

E

F

G

H

AHon’ble Court specifically directed him to allot the share of theplaintiff in Survey Nos.983A and 990 or in any of the both.

6. Paragraphs 5 and 6 of the report of the Commissionerare mutually conflicting. Paragraph 6 of the report is totally inconflict with the plan showing the allotment. Plots B1 and B2Bshown by the Commissioner in his plan explicitly come withinSurvey No.988. So, the allotment of the share of the plaintiffinclusive of Survey No.988 is totally against the spirit of the orderof this Hon’ble Court dated 27.04.1999. Such an allotment totallydeprives the exclusive right of this defendant over Survey No.988.

C….”

14. Considering the objections repeatedly filed by the seconddefendant reiterating that Survey No.988 falls within the description ofthe suit properties and that should be excluded from the properties to bepartitioned, the trial court ought to have held an enquiry and directed theDparties to adduce evidence as to the right claimed by the seconddefendant in old Survey No.988 (R.S. No.123/9) and what was the basison which the possession of the second defendant was upheld in theproceedings under Section 145 Cr.P.C. and in CRP No.45 of 1992.

15. Both the trial court and the First Appellate Court appear toEhave rejected the objections raised by the second defendant mainly onthe following grounds:-

i. No appeal was preferred by the second defendant against thepreliminary decree and therefore, second defendant cannotchallenge the correctness of the preliminary decree in thefinal decree proceedings;F

ii. Second defendant has not raised the plea regarding his claimof ownership in Survey No.988; and iii. Application for passing final decree is pending for more thansixteen yearsG

16. As per Section 97 CPC, where any party aggrieved by apreliminary decree passed after the commencement of this Code doesnot appeal from such decree, he shall be precluded from disputing itscorrectness in any appeal which may be preferred from the final decree.Of course, the second defendant has not filed the appeal against the H

preliminary decree challenging its correctness. But as pointed out bythe learned counsel for the second defendant, in the description of thesuit properties, Survey No.988 has not been shown. As pointed out bythe High Court, in para No. (13) of the written statement, seconddefendant has clearly averred that he is the owner of the adjoiningproperty in Survey No.988 in which the plaintiffs and the other defendantshave no right and that the third defendant is residing in a buildingbelonging to the second defendant in the said Survey No.988 on rentalbasis. In spite of the objections raised by the second defendant as to theboundaries and description of the suit properties and also claiming rightin Survey No.988 stated to be falling within those boundaries, theplaintiffs have not amended the description of the suit properties bybringing in Survey No.988 in the suit property. It is in this context, intheir written statement, the defendants have stated that “the defendantshave no objections to surrender the mortgage right in respect of Plaint BSchedule items…..”.

17. Be it noted that two Commissioners namely Mr. K. Ponniahand Mr. Ambrose earlier appointed have inspected the suit propertiesand filed their Reports stating that the suit properties are not identifiable.Only when Mr. Raveendran Nair, Advocate-Commissioner inspectedthe suit property, he has noticed that Survey No.988 is falling within thedescription of the boundaries stated in the Plaint. Since the descriptionof the suit property did not contain Survey No.988, the fact that thesecond defendant did not prefer appeal against the preliminary decree,cannot be put against the second defendant. Though the High Courtreferred to the averments in the written statement as to the claim ofsecond defendant in Survey No.988, the High Court did not go into thequestion as to the entitlement of second defendant and the confusionregarding the boundaries of the properties.

18. In view of the stand taken by the second defendant that he isentitled to the adjoining property in Survey No.988 by virtue of the saledeed of the year 1951 and the consistent objections raised by him to theCommissioner’s Report, in our view, in the final decree proceedings, thetrial court ought to have directed the parties to adduce evidence toenable the court to ascertain the truth as to the correct description of thesuit property and also the right claimed by the second defendant inSurvey No.988. We are conscious that the parties are fighting litigationfor more than five decades; but in order to meet the ends of justice, in AB

C

DE

F

G

H

Aour view, the impugned judgment of the High Court and the courtsbelow are liable to be set aside and the matter be remitted to the trialcourt for deciding the matter afresh.

19. Before we close the matter, we feel it necessary to set at resttwo issues. As pointed out earlier, Kalyani executed an agreement forBsale on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai. Secondplaintiff assigned the aforesaid agreement on 05.08.1978 in favour ofone Rajayyan and the said Rajayyan assigned the agreement in favourof third plaintiff-Selvi on 10.03.1983. As pointed out earlier, all the threeplaintiffs filed final decree application in I.A. No.120 of 1985. After thedisposal of the matter by the first appellate court and when the secondCappeal was pending before the High Court, second plaintiff VasudevanPillai filed an affidavit on 07.01.2013 before the trial court -– DistrictMunsiff Court, Kuzhithurai alleging that a fraud has been played on himand denying the right of third plaintiff-Selvi to pursue the final decreeapplication. The said Vasudevan Pillai alleged that he has never filedDfinal decree application and that his signature was forged and he has notassigned his right either in favour of Rajayyan or in favour of third plaintiff-Selvi. Though the parties have advanced lengthy arguments on the saidaverments in the affidavit filed by Vasudevan Pillai; it is to be pointed outthat the affidavit of Vasudevan Pillai is clearly an afterthought. In thefinal decree application I.A. No.120 of 1985, all the three plaintiffs haveEsigned. In the final decree stage, the third plaintiff-Selvi got herselfimpleaded based on the assignment of right in her favour by Rajayyanwho in turn got the assignment from the second plaintiff-VasudevanPillai. The third plaintiff-Selvi was pursuing the final decree application.Though the final decree application was pending before the trial courtFfor more than sixteen years and thereafter in the First Appellate Court,Vasudevan Pillai has not raised any objection nor made any grievanceagainst the third plaintiff-Selvi. Only when the second appeal was pendingbefore the High Court, the second plaintiff-Vasudevan Pillai has chosento file an affidavit before the court denying assignment of the right and

raising plea of forgery. In our view, the stand of Vasudevan Pillai isGclearly an afterthought and no weight could be attached to the avermentsin the affidavit. We make it clear that after the matter is remitted to thetrial court based on his affidavit, Vasudevan Pillai is not entitled to putforth any claim. We also make it clear that the locus of third plaintiff-Selvi to pursue the matter also shall not be called for question nor beHchallenged.

20. For the foregoing reasons, the impugned judgment of the HighCourt and the courts below are set aside and the appeal is allowed. Thematter is remitted to the trial court for consideration of the applicationfor final decree I.A. No.120 of 1985 in OS No. 1516 of 1969 afresh withthe following directions:- A

(i) The plaintiffs and the second defendant are at liberty toadduce oral and documentary evidence to substantiate theirobjections filed to the Commissioner’s Report; B

(ii) The trial court to decide upon the correct survey numbersfalling within the description of the suit properties and whetherthe said suit property within the stated boundaries tally withCthe properties mortgaged;

(iii) Tallying of boundaries of the properties with reference todocuments, if necessary, by reference to revenue records.

(iv) Entitlement of the second defendant-Gopalakrishnan Nair asto Survey No.988 with reference to his documents and alsoDthe proceedings before the Executive Magistrate and fur-ther revision thereon; and Since parties are litigating the matter for more than five decades,we direct the trial court to expedite the hearing in the final decreeproceedings and dispose the same in accordance with law. No cost.

E

Divya Pandey

Appeal allowed.

F

G

H