THAMARASSERI ROMAN CATHOLIC DIOCESE Vs. UMADEVI NAMBIAR

JUDGEMENT

(1.) The appeal is against the decree and judgment dated 31.10.1996 in O.S.No.130/1989 of the Sub Court, Kozikode by the defendants. The suit was filed for a decree of partition by the plaintiff Umma Devi Nambiar. Originally the plaint schedule property belonged to Ullattukandiyil Sankunni. On his death the property devolved upon the plaintiff and her elder sister Mrs.Rani Sidhan. She executed a general power of attorney in favour of her sister Mrs.Rani Sidhan for the management and administration of her assets situated in India. After death of her husband she entered into a second marriage. The relationship between the plaintiff and her sister got strained due to her second marriage. Thereon she cancelled the power of attorney on 31.01.1985. A suit in O.S No. 16/1986 was filed before the Sub Court Kozhikode for partition of her 1/2 right over the property on getting information regarding execution of documents of alienation by her sister Mrs.Rani Sidhan. Subsequently, she came to know about the execution of assignment deed No.779/1981, release deed No. 780/1981, document Nos.111/1982 and 719/1982 (Exts.B5 to B8 documents). According to the plaintiff as per the power of attorney executed, her sister, the power holder did not have any power to execute document of alienation in respect of her 1/2 share over plaint schedule property. So she filed a second suit in O.S No.27/1988 before the Sub Court, Kozhikode for getting partition against the assignees under Exts.B5 to B8 documents as defendants viz; Ismath Beevi, Zeenath Beevi and Jameela. (hereinafter referred as Ismath Beevi and others for sake of convenience) and also her sister Rani Sidhan. An ex- parte preliminary decree for partition was passed on 7.01.1989 in that suit. It is thereafter, the plaintiff came to know about the further alienation made by Ismath Beevi and others in favour of one Tharuvayi Haji and Kunhammad under Exts.B3 and B4 documents which were executed prior to the institution of the second suit. It was further revealed that they in turn conveyed the property as per document Nos. 488/1988, 544/1988 (Exts.B1 and B2) in favour of the defendants herein. So the preliminary decree passed in O.S. No.27/1988 became infructuous. That has necessitated the plaintiff in filing a 3rd suit for partition against the defendants herein for getting 1/2 share by metes and bounds over the plaint schedule property.

(2.) The defendant contested the suit admitting the execution of power of attorney in favour of the plaintiff's sister Rani Sidhan. The property originally belonged to late father of the plaintiff and her sister Rani Sidhan. Earlier the plaintiff has filed a suit for partition in O.S.No.16 of 1986. The plaint schedule property was omitted in that suit intentionally. As such the present suit is barred under Order II Rule 2 of the Code of Civil Procedure and also by principles of constructive res judicata. The suit is also bad for non-joinder of necessary parties. Rani Sidhan has not been made a party to the suit. The consideration which was received by Rani Sidhan from Ismath Beevi and others were utilized for discharging the debts incurred by the common business conducted for and on behalf of the plaintiff as well. Ismath Beevi and others transferred the property to Tharuvayi Haji and Kunhammad in the year 1984. Tharuvayi Haji and Kunhammad in turn sold the property to the defendants. Tharuvayi Haji and Kunhammad had constructed a retaining wall having a height of 10 feet around the property by levelling the property up to the road level by filling with red soil. The power of attorney was executed in the year 1971. It is based on the power granted under the power of attorney, Rani Sidhan had executed the sale deed for and on behalf of plaintiffs and registered the same in accordance with the law in force. After returning to India, the plaintiff was staying in her family house situated just one kilometre away from the plaint schedule property. She was fully aware of all these transactions and never raised any objection and thereby acquiscesd the act of her sister in selling the property and subsequent sales thereon. The defendant had started construction in the property after obtaining sanction from the Corporation of Calicut by installing 123 friction piles to a depth of 12 metres to cast the foundation and basement for the building proposed to be constructed by spending an amount of This property was not '.8,00,000/-. included in the earlier suit for partition in O.S.No.16 of 1986. It was also contended that the suit is barred by limitation.

(3.) The lower court by its impugned judgment dated 31.10.1996 decreed the suit by passing a preliminary decree of partition for dividing the property into two equal halfs by metes and bounds against which this appeal is preferred by the defendants.