REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.21834 OF 2017

SELVI        …Appellant

Versus

GOPALAKRISHNAN NAIR (D) THR. LRS.      AND ORS.    ...Respondents

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of the judgment dated 13.04.2006 passed

by the  High  Court  of  Madras  at  Madurai  Bench in  Second Appeal

No.255 of 2005 in and by which the High Court  set  aside the final

decree passed by the trial  court and affirmed by the First Appellate

Court  by  holding  that  the  appellant/plaintiff  cannot  lay  a  claim  in

respect of Survey No.988 which the first respondent/second defendant

claims entitled to.

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

The suit properties that is plaint A Schedule property and Plaint B

Schedule property belonged to Kali Pillai, Krishna Pillai and others of

Varukkapilavila  Veedu,  which  was  outstanding  on  a  mortgage.  On

27.12.1088 M.E.(11.08.1913) Kali Pillai, Krishna Pillai, Champakakutty

1

Pillai  alias  Bhagvathi  Pillai  and  Kalyani  Pillai  and  Lakshmi  Pillai

mortgaged  the  said  properties  to  Kutti  Bhagvathi  for  Rs.785/-

(Rs.109.04).   The mortgage was an usufructuary with Kuzhikkanam

for a period of twelve years. While Kutti Bhagvathi was enjoying it, she

assigned her mortgage right to Eravi Pillai Parvathi Pillai from whom

Parameswaran  Pillai  of  Kavavilai  got  an  assignment  under  deed

No.1231  of  1107  and  came  into  possession.  Parameswaran  Pillai

sub-mortgaged portion of Plaint B Schedule property to Kesava Pillai

Narayana  Pillai  which  right  has  become  vested  in  the  second

Defendant. The fourth Defendant has also right in the suit mortgage.

The  third  Defendant  has  also  right  in  the  suit  mortgage.  The  third

Defendant  has  leasehold  right  over  some  portion  of  B  Schedule

property  under  Parameswaran  Pillai.  The  first  Defendant  is  in

possession  of  A  Schedule  property  as  the  heir  of  the  deceased

assignee mortgagor  Parameswaran  Pillai.  The  mortgagors  1  and 2

died and their right devolved on the legal heirs of mortgagors - Kalyani

Pillai and her mother Lakshmi Pillai. The first Plaintiff - Kalyani Pillai

inherited the equity of redemption of the plaint property on the death of

her mother Lakshmi Pillai. The first Plaintiff is thus the mortgagor by

derivative title who is entitled to redeem the mortgage from Defendant

2

Nos.1 to 4.   In so far as her mortgage rights, the first plaintiff-Kalyani

Pillai executed an agreement of sale on 27.12.1968 in favour of the

second  Plaintiff  -  Vasudevan  Pillai  with  respect  to  the  mortgage

property  and  as  such  he  has  joined  as  the  second  Plaintiff.   Suit

Properties  within  the  stated  boundaries  are  said  to  be  situated  in

respect of A Schedule property in Survey numbers 990 - extent of 85

cents  and  Survey  No.983/12A  -  1  acre  and  35  cents;  Survey

No.983/13A - 5 acres 96 cents and Survey No.983/14A – 0.64 acres in

respect of B schedule property.

3. The respondent-second defendant  who is the main contesting

defendant  resisted  the  suit  inter-alia contending  that  he  is  in

possession of  Survey No.983/14A for  which  the appellants/plaintiffs

have no right of possession.  The second defendant-Gopalakrishnan

Nair  inter-alia further pleaded that the property in old Survey No.988

belongs to him and the third defendant is residing in a building situated

in Survey No.988 on rental basis.

4. The parties went for trial. Upon consideration of evidence, the

trial court passed the preliminary decree for partition on 07.08.1976

holding  that  the  plaintiffs-Kalyani  Pillai  and  Vasudevan  Pillai  are

entitled  to  redeem  and  recover  possession  of  7.40  acres  from

3

defendant  Nos.1  to  4  by  depositing  of  mortgage  money  of

Rs.109.81Paise.  The  trial  court  passed  the  preliminary  decree  for

partition to the said extent of 7.40 acres in the suit property to which

the plaintiffs are entitled for partition and separate possession.  

5. First plaintiff - Kalyani Pillai executed an agreement for sale on

27.12.1968  in  favour  of  the  second  plaintiff-Vasudevan  Pillai.  The

second plaintiff-Vasudevan Pillai assigned the above said agreement

in  favour  of  one  Rajayyan  on  05.08.1978  and  the  said  Rajayyan

assigned  that  agreement  in  favour  of  third  plaintiff-Selvi,  wife  of

Devaraj on 10.03.1983.  In the final decree proceedings, third plaintiff-

Selvi got herself impleaded in the suit by filing a separate petition. All

the three plaintiffs filed final decree application in I.A. No.120 of 1985

in  OS  No.1516  of  1969.   The  trial  court  by  its  judgment  dated

19.09.2001 passed the final decree for partition holding that Survey

No.988 which the second defendant claims cannot be exempted from

the  suit  property.  In  the  final  decree,  the  trial  court  held  that  the

appellant/plaintiff  is  entitled  to  the  portion  as

“ABCDEFXVUTSRQKLMNOP” marked in Exhibit C.2, entitled to the

possession  and  that  the  plaintiffs  are  entitled  to  redeem  the  suit

property.  The  Court  further  directed  that  the  legal  heirs  of  third

4

defendant-Krishna Pillai are entitled to get a sum of Rs.2,64,607.50 as

development charges of the suit property.

6. Being  aggrieved  by  the  final  decree,  the  second  defendant

Gopalakrishnan Nair preferred an appeal in AS No.6 of 2002 on the file

of  Sub-court,  Kuzhithurai.  The  First  Appellate  Court  dismissed  the

appeal vide its judgment dated 20.08.2004 holding that no appeal had

been preferred from the preliminary decree dated 07.08.1976 by the

second defendant and that he cannot challenge the correctness of the

preliminary decree in the final decree proceedings. The First Appellate

Court  confirmed  the  final  decree  passed  by  the  trial  court  and

dismissed the appeal observing that Gopalakrishnan Nair cannot have

any valid objection for the final decree in favour of the plaintiffs.  

7. Being  dissatisfied  with  the  concurrent  findings,  the  first

respondent  preferred  appeal  in  SA No.255  of  2005  before  Madras

High Court at Madurai Bench. The High Court proceeded to hold that

the first respondent/second defendant in his written statement raised a

plea of ownership in respect of Survey No.988 and that by its order

dated 27.04.1998, the trial court also directed exclusion of the property

in Survey No.988. After referring to the order of the trial court dated

27.04.1998 and the Commissioner's Report, the High Court held that

5

the  suit  property  in  the  preliminary  decree  does  not  cover  Survey

No.988 and was removed from 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 the final 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 and

perused  the  impugned  judgment  and  carefully  considered  the

evidence and materials placed on record.

9. Right from the beginning, while filing the written statement and

also the objections filed  to  the Commissioner’s  Report,  the second

defendant-Gopalakrishnan Nair has been contending that old Survey

No.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 the

following objections:-

“……R.S.  No.123/9  which  is  old  survey  No.988  belongs  to  the second  defendant.   The  title  of  the  second  defendant  to  R.S. No.123/9 was declared and the defendants 9 to 11 who are the LRs of the third defendant are restrained by injunction from disturbing the quiet and peaceful possession of the land and trees excluding the building and courtyard…….”

10. Mr. Raveendran Nair, Advocate-Commissioner was appointed to

measure the suit properties according to the boundaries contained in

6

the documents filed in the suit namely Exts. A.1, A.2, B.1, B.2 and to

locate the properties contained in the Survey numbers 990, 983-A and

988.   In  the  said  order  dated  27.04.1998,  the  trial  court  directed

exclusion of Survey No.988 as seen from the following:-

“…..Further, he is directed that after measuring and locating the suit properties  viz.,  in  Survey  No.990  and  983-A  and  the  second defendant’s  property  which  is  situated  in  Survey  No.988,  the Commissioner may allot the plaintiff’s  share of 7 Acres 40 cents both in Survey No.990 and 983 or in any of the above two survey numbers….”

11. The Commissioner filed its Preliminary Report on 17.02.1999, for

which  the  second  defendant-Gopalakrishnan  Nair  filed  detailed

objections  stating  that  the  Commissioner,  while  locating  Survey

No.988,  did  not  follow  the  boundary  descriptions  contained  in  the

documents.   Relevant  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 survey numbers  i.e.,  Survey  Nos.990  and  983  and  the  other  Survey Number 988 as directed by this Hon’ble Court.

5. The  Commissioner  failed  to  understand  that  a  partition  is impossible in this suit without locating the plaint schedule survey numbers 990 and 983.

6. It  is  seen from the report  of  the Commissioner that he is more particular and interested in locating Survey No.988 alone just to confuse matters.  The various documents filed by this Defendant relating  to  his  title  to  Survey  No.988  and  ignored  by  the Commissioner.  While locating Survey No.988, the Commissioner did not follow the descriptions contained in the ancient documents filed by this defendant before this Hon’ble Court.   But he simply

7

followed documents for bits of land brought into existence after the suit and registered in Kerala at the instance of the Plaintiff.

8. …..This  Thottampara  Nilam  lies  west  of  the  road  and comprised in Survey No.1025.  The portion lies west of the road also  forms  part  of  Survey  No.988.   The  portions  shown  as Thottampara  Nilam  and  Muriyaravilakam  are  also  portions  of Survey No.988.  The Commissioner did not locate the southern limit of Survey No.988……

…..”

12. Based  on  the  objections  filed  by  the  second  defendant,

Mr.  Raveendran Nair,  Advocate-Commissioner  revisited the property

and filed his Report noticing Survey No.988 falls within the description

of  the  suit  properties.   The  relevant  portion  of  the  Report  of  the

Commissioner dated 26.04.1999 reads as under:-

“….While the Hon’ble Court appointing me as Commissioner, it is specifically ordered to exclude old Survey No.988.  Since it belongs to second defendant, when this plot is excluded from partition 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 and 988 of Mancode Village.  Out of the above survey numbers, the plaintiff  is  entitled  on  the  basis  of  boundaries  the  plot  shown A,B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,A, is the plot having an area of 7 Acres 40 Cents. ……”

13. Appellant-Selvi  filed  detailed objections to  the Commissioner’s

Report  stating  that  Survey  No.988  cannot  be  excluded  from  the

properties to be partitioned.  Second defendant-Gopalakrishnan Nair

also  filed  detailed  objections  to  the  Commissioner’s  Report  on

04.11.1999, as under:-

8

“….. 4. The  Commissioner  has  wrongly  shown  ‘B’  Schedule Property  inclusive  of  the  whole  by  Survey  Nos.988  without identifying the suit properties i.e. Survey Nos.983A and 990.  Old Survey No.988 correlates to R. Survey No.123/9 having an extent of  3  Acres 39 Cents  in  the  exclusive property  of  this  defendant which  is  not  available  to  a  partition.   In  this  aspect,  the Commissioner has not even taken note of the various documents filed by this defendant.

5. The  Commissioner  exceeded  his  authority  in  allotting  the share of the plaintiff inclusive of the whole Survey No.988 while this Hon’ble  Court  specifically  directed  him to  allot  the  share  of  the plaintiff in Survey Nos.983A and 990 or in any of the both.

6. Paragraphs 5 and 6 of the report of the Commissioner are mutually conflicting.  Paragraph 6 of the report is totally in conflict with the plan showing the allotment.  Plots B1 and B2 shown by the Commissioner  in  his  plan  explicitly  come within  Survey  No.988. So, the allotment of  the share of the plaintiff  inclusive of Survey No.988 is totally against the spirit of the order of this Hon’ble Court dated 27.04.1999.  Such an allotment totally deprives the exclusive right of this defendant over Survey No.988.

….”

14. Considering  the  objections  repeatedly  filed  by  the  second

defendant reiterating that Survey No.988 falls within the description of

the suit properties and that should be excluded from the properties to

be  partitioned,  the  trial  court  ought  to  have  held  an  enquiry  and

directed the parties to adduce evidence as to the right claimed by the

second defendant in old Survey No.988 (R.S. No.123/9) and what was

the basis on which the possession of the second defendant was upheld

in the proceedings under Section 145 Cr.P.C. and in CRP No.45 of

1992.

9

15. Both the trial court and the First Appellate Court appear to have

rejected the objections raised by the second defendant mainly on the

following grounds:-

i. No  appeal  was  preferred  by  the  second  defendant

against the preliminary decree and therefore, second

defendant  cannot  challenge  the  correctness  of  the

preliminary decree in the final decree proceedings;

ii. Second defendant has not  raised the plea regarding

his claim of ownership in Survey No.988; and

iii. Application for passing final decree is pending for more

than sixteen years

16. As  per  Section  97  CPC,  where  any  party  aggrieved  by  a

preliminary decree passed after the commencement of this Code does

not appeal from such decree, he shall be precluded from disputing its

correctness  in  any  appeal  which  may  be  preferred  from  the  final

decree.   Of  course,  the second defendant  has not  filed  the appeal

against  the  preliminary  decree  challenging  its  correctness.   But  as

pointed out by the learned counsel for the second defendant, in the

description of the suit properties, Survey No.988 has not been shown.

As  pointed  out  by  the  High  Court,  in  para  No.  (13)  of  the  written

statement, second defendant has clearly averred that he is the owner

of the adjoining property in Survey No.988 in which the plaintiffs and

10

the  other  defendants  have  no  right  and  that  the  third  defendant  is

residing in a building belonging to the second defendant in the said

Survey No.988 on rental basis.  In spite of the objections raised by the

second defendant  as  to  the  boundaries  and  description  of  the  suit

properties and also claiming right in Survey No.988 stated to be falling

within  those  boundaries,  the  plaintiffs  have  not  amended  the

description of the suit properties by bringing in Survey No.988 in the

suit  property.   It  is  in  this  context,  in  their  written  statement,  the

defendants  have  stated  that  “the  defendants  have  no  objections  to

surrender the mortgage right in respect of Plaint B Schedule items…..”.

17. Be it noted that two Commissioners namely Mr. K. Ponniah and

Mr. Ambrose earlier appointed have inspected the suit properties and

filed their Reports stating that the suit properties are not identifiable.

Only  when Mr.  Raveendran Nair,  Advocate-Commissioner  inspected

the suit property, he has noticed that Survey No.988 is falling within the

description of the boundaries stated in the Plaint.  Since the description

of the suit property did not contain Survey No.988, the fact that the

second defendant did not prefer appeal against the preliminary decree,

cannot be put against the second defendant. Though the High Court

referred to the averments in the written statement as to the claim of

11

second defendant in Survey No.988, the High Court did not go into the

question as to the entitlement of second defendant and the confusion

regarding the boundaries of the properties.   

18. In view of the stand taken by the second defendant that he is

entitled to the adjoining property in Survey No.988 by virtue of the sale

deed of the year 1951 and the consistent objections raised by him to

the  Commissioner’s  Report,  in  our  view,  in  the  final  decree

proceedings,  the  trial  court  ought  to  have  directed  the  parties  to

adduce evidence to enable the court to ascertain the truth as to the

correct description of the suit property and also the right claimed by the

second  defendant  in  Survey  No.988.   We  are  conscious  that  the

parties are fighting litigation for more than five decades; but in order to

meet the ends of justice, in our view, the impugned judgment of the

High Court  and the courts below are liable to be set aside and the

matter be remitted to the trial court for deciding the matter afresh.  

19. Before we close the matter, we feel it necessary to set at rest two

issues.  As pointed out earlier, Kalyani executed an agreement for sale

on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai.  Second

plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of

one  Rajayyan  and  the  said  Rajayyan  assigned  the  agreement  in

12

favour of third plaintiff-Selvi on 10.03.1983.  As pointed out earlier, all

the three plaintiffs filed final decree application in I.A. No.120 of 1985.

After the disposal of the matter by the first appellate court and when

the second appeal was pending before the High Court, second plaintiff

Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court –

District  Munsiff  Court,  Kuzhithurai  alleging  that  a  fraud  has  been

played on him and denying the right of third plaintiff-Selvi to pursue the

final decree application.  The said Vasudevan Pillai alleged that he has

never filed final decree application and that his signature was forged

and he has not assigned his right either in favour of Rajayyan or in

favour  of  third  plaintiff-Selvi.   Though  the  parties  have  advanced

lengthy  arguments  on  the  said  averments  in  the  affidavit  filed  by

Vasudevan Pillai; it is to be pointed out that the affidavit of Vasudevan

Pillai  is  clearly  an afterthought.   In  the final  decree application I.A.

No.120 of 1985, all the three plaintiffs have signed.  In the final decree

stage,  the  third  plaintiff-Selvi  got  herself  impleaded  based  on  the

assignment  of  right  in  her  favour  by Rajayyan who in  turn  got  the

assignment  from  the  second  plaintiff-Vasudevan  Pillai.   The  third

plaintiff-Selvi was pursuing the final decree application.  Though the

final  decree application was pending before the trial  court  for  more

13

than  sixteen  years  and  thereafter  in  the  First  Appellate  Court,

Vasudevan Pillai has not raised any objection nor made any grievance

against  the third  plaintiff-Selvi.   Only  when the second appeal  was

pending before the High Court,  the second plaintiff-Vasudevan Pillai

has chosen to file an affidavit before the court denying assignment of

the  right  and  raising  plea  of  forgery.   In  our  view,  the  stand  of

Vasudevan Pillai  is  clearly  an afterthought  and no weight  could  be

attached to the averments in the affidavit.  We make it clear that after

the  matter  is  remitted  to  the  trial  court  based  on  his  affidavit,

Vasudevan Pillai is not entitled to put forth 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 be challenged.  

20. For the foregoing reasons, the impugned judgment of the High

Court and the courts below are set aside and the appeal is allowed.

The  matter  is  remitted  to  the  trial  court  for  consideration  of  the

application for final decree I.A. No.120 of 1985 in OS No. 1516 of 1969

afresh with the following directions:-

(i) The  plaintiffs  and  the  second  defendant  are  at

liberty to adduce oral and documentary evidence to

substantiate  their  objections  filed  to  the

Commissioner’s Report;

14

(ii) The  trial  court  to  decide  upon the  correct  survey

numbers  falling  within  the  description  of  the  suit

properties and whether the said suit property within

the  stated  boundaries  tally  with  the  properties

mortgaged;  

(iii) Tallying  of  boundaries  of  the  properties  with

reference to documents, if necessary, by reference

to revenue records.

(iv) Entitlement  of  the  second  defendant-

Gopalakrishnan  Nair  as  to  Survey  No.988  with

reference  to  his  documents  and  also  the

proceedings  before  the  Executive  Magistrate  and

further 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  decree

proceedings and dispose the same in accordance with law.  No cost.

.…….…………...………J.        [R. BANUMATHI]

..…………….…………… J.

[L. NAGESWARA RAO] New Delhi; May 15, 2018

15