V M MATHEW Vs. ELISWA

JUDGEMENT

(1.) PLAINTIFF in a partition suit, O. S. No. 414 of 1976 of the Sub Court, ernakulam is the appellant herein.

(2.) FIRST defendant was the widow, defendants 2, 6, 7 and 9 are the daughters and plaintiff, defendants 3 to 5, 8 and 10 are the sons of matheeis, who died on 3-5-1976. Plaint A schedule properties are immovable properties. The plaint in the partition suit contains two schedules, viz. , immovable properties in A schedule and movable and outstandings in B schedule. The main dispute regarding partibility related to the two sets of properties. Defendants 3 and 5 to 7 contended that 11. 178 cents of land dealt with under ext. B1 and included in plaint A schedule item 3 was given to them by Matheeis under Ext. B1 and that the building standing thereon also belonged to them and dealt with by them under Ext. B2 and therefore the land and the building is not partible. There was a further contention that certain items of partible properties have not been included in the plaint. Ultimately parties agreed that the dispute regarding those items not included in the plaint could be agitated in a fresh suit. The former contention regarding 11. 178 cents of land together with the building was accepted by the court below which held it to be not partible. Accordingly a preliminary decree for partition was passed regarding the plaint schedule properties except Ext. B1 property and Ext. B2 building, shares being determined under the provisions of the Cochin Christian Succession act, the court having held that the married daughters were not given sthreedhanam and therefore they are entitled to share. The plaintiff challenges the finding of the court below regarding 11. 178 cents of land as well as the building. Defendants 6, 7 and 9 have filed CMP No. 30967 of 1987 praying that this court may direct their shares computed under the provisions of the Indian succession Act be allotted to them. This court directed that the question be considered in appeal.

(3.) WE have referred in detail to the previous litigation, contentions of the parties therein and the findings of the three courts because it is argued on behalf of the appellant that the finding of the first appellate court, with which this court in the Second Appeal declined to interfere, is binding on the parties therein and operates as res judicata. It has to be seen that in the prior suit the court did not purport to record any finding whether title to the land passed under Ext. B1; first appellate court found that the building was constructed with the funds of Matheeis and the title remained with him and did not pass under Ext. B1 to the four sons. Matheeis left behind him his widow, six sons and four daughters. Of them, the widow, five sons and two daughters were parties to the prior suit; present defendants 3, 5 and 9 were not parties thereto. In A. S. No. 23 of 1979 the first appellate court found that the settlement deed did not purport to convey title to the building, that the building was constructed by Matheeis out of his own funds and dealt with by him as owner till his death, that the contrary recitals in Exts. B1 and B2 were not true and therefore the building would devolve on his heirs at the time of his death. Though present defendants 3 and S to 7 were not parties to that suit, the finding referred to above would be binding between the parties thereto by virtue of the provisions of S. 11 CPC. Therefore those parties cannot in this litigation contend that the building did not belong to Matheeis. However, it is open to present defendants 3, 5 and 9 to raise such a contention. This no doubt could lead to an anomalous situation since so far as these three defendants are concerned it would be legally permissible for this court to take a view contrary to the view taken in A. S. No. 23 of 1979. WE are not impressed by the contention advanced on behalf of some of the respondents that the findings in A. S. No. 23 of 1979 cannot be conclusive even between the parties on account of the fact that these findings were not allowed to be challenged in the second appeal. Second Appeal lies only on substantial question of law and this court did not permit any question to be raised on any finding of fact or law except in regard to interpretation of Ext. B1. It must therefore be taken that those findings of the first appellate court have become final between the parties.