SELVI versus GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.

Citation: [2018] 6 S.C.R. 510 · Decided: 15-05-2018 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
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SELVI
v.
GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.
(Civil Appeal No. 21834 of 2017)
MAY 15, 2018
[R. BANUMATHI AND L. NAGESWARA RAO, JJ.]
Mortgage – Redemption of – Suit for redeeming the mortgaged
properties, filed by plaintiffs inter alia against Respondent-Defendant
No.2 – Respondent resisted the suit inter alia contending that property
in old Survey No.988 belongs to him– Trial court passed the  final
decree holding that the plaintiffs are entitled to redeem the suit
property and that old Survey No.988 which the respondent claimed
ownership of, cannot be exempted from the suit property –
Respondent filed appeal, which was dismissed by First Appellate
Court – High Court allowed the second appeal of respondent – On
appeal, held: In view of the objections repeatedly filed by the
respondent reiterating that old Survey No.988 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 respondent in old Survey No.988 – Though,
the parties are fighting litigation for more than five decades, but in
order to meet the ends of justice, judgment of High Court and the
courts below are set aside and matter remitted to trial court for
deciding it afresh – Directions issued – Code of Civil Procedure,
1908 – s.97.
Allowing the appeal, the Court
HELD: 1.1 An Advocate-Commissioner was appointed to
measure the suit properties according to the boundaries
contained in the documents filed in the suit and to locate the
properties contained in the Survey numbers 990, 983-A and 988.
Right from the beginning, while filing the written statement and
also the objections filed to the Commissioner’s Report, the
respondent-second defendant contended that old Survey No.988
(R.S. No.123/9) belongs to him. [Paras 9, 10] [515-F; 516-A-B]
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1.2  The Commissioner filed its Preliminary Report on which
the respondent filed detailed objections stating that the
Commissioner, while locating Survey No.988, did not follow the
boundary descriptions contained in the documents. Based on the
objections filed by the respondent, the Advocate-Commissioner
revisited the property and filed his Report noticing Survey No.988
falls within the description of the suit properties. [Paras 11, 12]
[516-C-D; 517-B-C]
1.3 Appellant-third plaintiff filed detailed objections to the
Commissioner’s Report stating that Survey No.988 cannot be
excluded from the properties to be partitioned. The Respondent
also filed detailed objections to the Commissioner’s Report.
Considering the objections repeatedly filed by the respondent
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 respondent in old Survey No.988 (R.S. No.123/9) and what
was the basis on which the possession of the respondent was
upheld in the proceedings under Section 145 Cr.P.C. and in CRP
No.45 of 1992. [Paras 13, 14] [517-E-F; 518-D]
1.4 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 respondent did not file the
appeal against the preliminary decree challenging its correctness.
But as pointed out by the respondent, in the description of the
suit properties, Survey No.988 was not shown. As pointed out by
the High Court, in para No. (13) of the written statement,
respondent clearly averred that he is the owner of the adjoining
property in Survey No.988 in which the plaintiffs and the other
defendants have no right and that the third defendant is residing
in a building belonging to the respondent in the said Survey No.988
on rental basis. In spite of the objections raised by the respondent
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 did not amend the description of
SELVI v. GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.
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[2018] 6 S.C.R.
the suit properties by bringing in Survey No.988 in the suit
property. It w

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