Chemmili Kunhalavi vs Chemmili Muidheen's Son Theni

Sathish Ninan, J

The preliminary decree in a suit for partition is under challenge by the 1st defendant.

The plaint schedule consists of 7 items of properties. The scope of this appeal is very limited. The appeal is confined to the claim of equity and reservation with regard to the improvements effected by the 1st defendant in the plaint schedule item No.2 property.

Late Moideen, the father of the plaintiff and defendants 1 and 2, was the owner of the property. The 3rd defendant is the wife of the 2nd defendant. Apart from the plaintiff and defendants 1 and 2, Moideen had two daughters. The wife of Moideen had assigned her rights to the plaintiff, 1st defendant and the two daughters as per document No.1084 of 1976. The sisters released their rights in favour of the plaintiff as per document No.627 of 1980. The plaintiff seeks for partition of his share.

The 1st defendant, though filed a written statement claiming reservation with regard to the building and other improvements allegedly put up by him in the plaint schedule item No.2 property, chose to remain ex parte.

The trial court found that there is no evidence to find exclusive title of the 1st defendant over the alleged improvements made and thus, the claim for reservation was negatived. It is challenging the same that the 1st defendant has filed this appeal.

I have heard learned counsel on either side.

The point that arises for determination is;

“Is the decree and judgment of the trial court, declining to grand reservation to the 1st defendant with regard to the improvements in plaint schedule item No.2 property, liable to be interfered with?”

But for raising a plea with regard to the improvements in plaint schedule item No.2 property, as noticed, the 1st defendant remained ex parte in the proceedings. Consequent on the lack of evidence, the trial court rejected the plea and directed the entire plaint schedule item No.2 property with the improvements, to be partitioned. In the absence of any evidence, the trial court had no other option but to declined the claim of reservation. Though the learned counsel for the appellant seeks for remand of the suit to enable the 1st defendant to adduce evidence with regard to the claim, taking note of the fact that the suit is of the year 1991 and this appeal itself is of the year 1999, I do not think that such a request is to be entertained at this stage. The claim of the 1st defendant to exclude the improvements, was rightly declined by the trial court.

Interests of justice will be met by ordering that the claim for equitable allotment of the portion of plaint schedule item No.2 property covered by the improvements, if any, effected by the 1st defendant is considered in the final decree proceedings. The 1st defendant, if he appears in the final decree proceedings, will be given an opportunity to adduce evidence with regard to the same. However, it is clarified that, item number 2 along with the improvements are liable for partition.

But for reserving the right for equitable claim noted above, no other interference is called for with the decree and judgment of the trial court. The appeal is disposed of as above. No costs.

The parties shall appear before the trial court on 28.02.2024. I am sure that the trial court will expedite the final decree proceedings taking note of the fact that the suit is of the year 1991.