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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 2 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 3 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 4 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 5 to show that the appellant had
sent Rs.55,000/- during the period 1976-77 for the construction of the
building.
9. On a close scrutiny of all the
documents available on record and the oral evidence, the High Court came
to the conclusion that on construction of the building the appellant had
spent Rs.55,000/- and the balance amount had been spent by the
respondent. The High Court allowed the appeal and set aside the order
and the preliminary decree passed by the trial court. In the impugned
judgment, the High Court directed that the plaintiff/appellant was not
entitled to divide the house and could only claim Rs.55,000/- from the
appellant which will be a charge on the property of the appellant.
10. The appellant, aggrieved by the
said judgment of the High Court, preferred this appeal before this
court.
11. We have heard learned counsel
for the parties at length. The parties have been litigating for more
than 20 years and because of the bitter and long litigation it may not
be conducive for the parties to stay in the same building, 6
particularly when they have option of residing separately because of the
available land with each one of them. During the course of hearing, the
learned senior counsel appearing for the respondent gave an offer that
his client is willing to pay Rs.5,50,000/- in lieu of the share of the
appellant. No offer was given by the appellant despite opportunity
granted by this court.
12. In the facts and circumstances
of the case, while balancing the equities and for keeping peace and
happiness in the family, we think it would be just and proper to direct
the respondent to pay Rs.5,50,000/- to the appellant within a period of
four months. On receiving the said amount, the appellant may construct a
suitable house in his portion of the land and for that purpose we grant
one year's time from the date of payment of Rs.5,50,000/- to the
appellant to vacate the portion of the building which is presently in
his possession and give vacant and peaceful possession of his portion of
building to the respondent in lieu of payment of Rs.5,50,000/-. 7 We are
granting long time to the appellant to vacate the portion of the
building in his possession to avoid any inconvenience to the appellant.
In case the appellant after one year of receiving the entire amount of
Rs.5,50,000/- does not vacate the portion of the building in his
possession, in that event, the Subordinate Court is directed to ensure
that the possession is taken from the appellant and handed over to the
respondent. Perhaps this solution may lead to ultimate peace between the
families of two brothers.
13. With these observations, this
appeal is accordingly disposed of leaving the parties to bear their own
costs.
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