JUDGMENT

Dalveer Bhandari, J. —

1. This appeal is directed against the judgment dated 21st May, 1998 passed by the High Court of Kerala at Ernakulam in A.S. No.254 of 1990.

2. This is an unfortunate litigation regarding partition of a building constructed on a small piece of land between the brothers. It is not disputed that the land is jointly owned by both the brothers. The dispute is restricted over the building which has been constructed on the part of the land. The matter has travelled from the Subordinate Court, Trichur to this Court.

3. A serious endeavour has been made by this Court to amicably settle the matter. On 6.8.2008, the following order was passed by this Court:

“In the present case, the dispute is between two brothers. The ownership of the land is admittedly joint. The short controversy is regarding the cost of construction over that plot. The case of the respondent is that he has spent the entire cost of construction whereas the case of the appellant is that he has also contributed equally to the cost of construction.

In our considered view, this controversy can be easily sorted out by the parties. We have requested the learned counsel for the parties to ensure that the matter may be amicably settled between the parties and for that purpose, we adjourn this matter for four weeks.”

The dispute could not be resolved despite efforts of this court and now we have been called upon to give our judgment in the matter.

4. Vinodan and Vishwanathan in the suit were the plaintiff and defendant before the trial court. The suit was filed before the trial court with the prayer that the property described in the plaint schedule was purchased jointly by the parties as per the document no. 806/77 and the appellant before this court Vinodan is entitled to the half share of the property. The trial court framed the following issues:

“(1) Whether the plaint schedule property was acquired by the plaintiff and defendant jointly or whether it was acquired by the defendant exclusively?

(2) Whether the house was constructed by both the parties or by any of them exclusively?

(3) Whether plaintiff is entitled to claim partition?

(4) What is the quantum of mesne profits, if to be paid?

(5) Equities and reservations?

(6) Reliefs and Costs?”

The trial court after examining the evidence and hearing the parties came to the following finding on Issues no.1&2:

“I have absolutely no hesitation to hold that the plaintiff and defendant had supplied funds for the construction of the house and the house had been constructed with that amount and so the house belonged to them jointly. Similarly the property had also been purchased with the funds of both and so it also belongs to them jointly.”

5. Regarding Issue no. 3, the trial court came to the finding that it had to be divided into two equal shares and one such share was allotted to the plaintiff/appellant herein and the other share was allotted to the defendant/respondent herein.

6. Regarding Issue no.4 pertaining to mesne profits, the trial court held that the plaintiff/appellant was entitled to get mesne profits from the defendant/respondent from the date of suit till possession. The trial court further held that the quantum of mesne profits can be a matter which could be decided in the final decree proceedings after the Commissioner would submit his report.

7. The trial court directed that the property described in the plaint schedule has to be divided into two equal shares and one such share was allotted to the plaintiff/appellant and the other to the defendant/respondent.

8. The defendant/respondent Vishwanathan aggrieved by the said order of the Subordinate Court, Trichur filed an appeal before the High Court of Kerala at Ernakulam. The finding of the High Court is that the plaintiff/appellant had been regularly sending money for the construction of the building during the period 1977-78. Exhs. B-36 and B-37 go to show that the appellant had sent Rs.55,000/- during the period 1976-77 for t