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2021 Supreme(Online)(KER) 15878
HIGH COURT OF KERALA
A.HARIPRASAD, T.V.ANILKUMAR, JJ
SHARP BUILDERS AND DEVELOPERS – Appellant
Versus
KAYYATH REALTORS – Respondent
RFA/243/2020
SRI.ABDUL RAOOF PALLIPATH, SRI. RAJ CAROLIN V., SRI.B.KRISHNAN, SRI.R.PARTHASARATHY, SMT.C.LEENA, SRI.C.H.ABDUL RASAC
Final decree proceedings are limited to the rights established in the preliminary decree, excluding third-party claims for independent debts.
Headnote:
Partition - Final Decree Proceedings - CPC Order 20 Rule 18 - The court held that claims of third parties cannot be adjudicated in final decree proceedings. The rights conferred by a preliminary decree dictate the scope of the final judgment, affirming the distinction between partition claims and independent claims for debt recovery.
Fact of the Case:
An appeal was filed against a final decree for partition. A Firm, not a party to the original suit, claimed a charge on the property based on an alleged debt from a sharer, which was rejected by the lower court for being beyond the scope of the proceedings.
Issues: Whether the appellant's claims could be considered within the final decree proceedings for partition.
Ratio Decidendi: Claims that do not arise from the preliminary decree and seek to adjudicate third party rights are outside the purview of final decree proceedings.
Final Decision: The appeal is dismissed without prejudice to pursue claims in a separate suit.
J U D G M E N T
T.V.ANILKUMAR, J.
This appeal is filed challenging the final judgment and decree for partition dated 23.03.2020 passed by the learned Subordinate Judge, Kannur, in F.D.I.A.No.809/2014 in O.S.No.36/2012. Pursuant to preliminary decree for partition declaring shares of parties, a Commission was deputed for quantification of shares and allocation of properties to the sharers under the decree. None of the sharers seems to be aggrieved by the final decree passed in terms of Ext.C2 report and Ext.C2(e) plan.
2. The appeal is preferred by 12th respondent in the final decree proceeding, which is a Firm represented by its joint Managing partner. The Firm is neither a party to suit nor a sharer as per the :-5-:
preliminary decree. It came on record as per an order dated 07.10.2015 on I.A.No.1052/2015 passed by the final decree court. It raised a claim pleading for creation of charge in the decree schedule property contending that it had an enforceable money claim against one of the sharers. The claim was refused on factual as well as legal reasons. Being aggrieved by the refusal, it has preferred this appeal.
3. The tenth respondent in the appeal alone appeared. We heard the learned counsel appearing for the appellant as well as the tenth respondent.
4. Appellant's claim is that sixth defendant in the suit who is a sharer permitted the Firm to occupy the house in the property for a period of twelve years on receipt of a lump sum amount of Rs.10 lakhs as a refundable security, without creating any obligation of paying any rent for the stipulated twelve years. According to the :-6-:
appellant, the liability of sixth defendant has not yet been discharged and it created a charge in the decree schedule property. The appellant sought in the proceedings to protect the debt in its favour either by creating a charge in the property or securing a decree granting permission to it to continue in possession of the building for the stipulated period of twelve years. The sixth defendant parted with his rights in the property in favour of defendants 8 to 11 who as per the preliminary decree, obtained 4/16 share in the property. The sixth defendant later passed away. 5. The appellant adduced evidence in the court below in support of its case that the Firm advanced an amount of Rs.10 lakhs to the sixth defendant and was put in possession for twelve years without any obligation of paying any rent for the period. Oral evidence was adduced through DWs.1 to 4. A photocopy of alleged agreement evidencing receipt :-7-:
of amount and entrustment of property was sought to be proved, which the court below refused to accept in evidence as being inadmissible.
6. On appreciating the oral evidence, the court below entered into a factual finding that the appellant failed to establish its claim. The court below further went on to hold that the claim raised by the appellant was beyond the scope of final decree proceedings and therefore also it was not sustainable.
7. The contention of the learned counsel for the appellant is that the finding of the court below is factually and legally erroneous and is liable to be interfered with in the appeal.
8. After hearing the counsel appearing on both sides, we find it difficult to accept any of the contentions taken by the appellant in appeal.
9. We are also of the opinion that the claim advanced by the appellant in the final decree :-8-:
proceedings is not admissible within the scope of the proceedings. No rights were conferred on the appellant by the preliminary decree for partition passed in the suit. In a proceedings for passing a final judgment, the court is concerned only with working out the rights of the parties as provided in the preliminary decree and quantifying shares allotted to parties. Adjudication of rights claimed by the third parties does not arise in such proceedings.
10. The cause of action for the alleged claim raised by the appellant is no way connected with the cause of action which led to the institution
