2018 Supreme(SC) 478

SUPREME COURT OF INDIA
R. BANUMATHI, L. NAGESWARA RAO, JJ.
SELVI – Appellant
Versus
GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS. – Respondents
CIVIL APPEAL NO.21834 OF 2017
Decided On : 15-05-2018

IMPORTANT POINT
Party aggrieved by a preliminary decree but not preferring appeal from such decree, shall be precluded from disputing its correctness in any appeal which may be preferred from final decree. But it may depend upon fact situation.
When a parry along with others files application for final decree, during pendency of second appeal he cannot allege fraud in final decree application before the trial court.

Headnote:(a) Code of Civil Procedure, 1908 – Section 97 – Party aggrieved by a preliminary decree but not preferring appeal from such decree, shall be precluded from disputing its correctness in any appeal which may be preferred from final decree – Instantly second defendant claiming ownership of survey no. 988 through a sale deed – Plaint also not showing survey no. 988 in the suit property – Therefore second defendant did not appeal against preliminary decree – He has been objecting to Advocate Commissioners’ reports – Held, in the final decree proceedings, trial court ought to have directed the parties to adduce evidence – Matter required to be remitted to trial court for decision afresh. (Para 18)

       (b) Administration of justice – One of the original owners Kalyani executing an agreement for sale on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai – Second plaintiff assigning the aforesaid agreement in favour of one Rajayyan – Rajayyan in turn assigning the agreement in favour of third plaintiff-Selvi – All the three plaintiffs filing final decree application – During pendency of second appeal second plaintiff Vasudevan Pillai filing an affidavit before the trial court alleging fraud on him and denying the right of third plaintiff-Selvi to pursue final decree application – Vasudevan Pillai alleging that his signature was forged – Held, the affidavit of Vasudevan Pillai is an afterthought. (Para 19)

       Facts of the case:

       The suit properties belonged to Kali Pillai, Krishna Pillai and others of Varukkapilavila Veedu. On 27.12.1088 M.E.(11.08.1913) Kali Pillai, Krishna Pillai, Champakakutty 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 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 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.

       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.

       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 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.

       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 defendant-Krishna Pillai are entitled to get a sum of Rs.2,64,607.50 as development charges of the suit property.

       The First Appellate Court dismissed the appeal.

       The High Court allowed the second appeal. The High Court held that the final decree will stand as it is, excluding Survey No.988.

       Finding of the Court:

       Party aggrieved by a preliminary decree but not preferring appeal from such decree, shall be precluded from disputing its correctness in any appeal which may be preferred from final decree.

       Result: Appeal allowed. Matter remitted to trial court.