Whether a Single Suit for Partition and Recovery of Possession is Maintainable ?

Civil Procedure Code, 1973 - Order 2 Rule 4 - The cause of action for claiming partition and the cause of action for claiming recovery of possession are different. Order II Rule 4 does not permit filing a single suit for partition and recovery of possession.

2018 (2) KLT SN 29 (C.No.38) : 2018 (2) KHC 454

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.ABRAHAM MATHEW, J.

R.F.A.No.549 of 2013

Dated this the 14th day of March, 2018 

OS 126/2007 III ADDITIONAL SUB COURT, KOZHIKODE.

APPELLANT/PLAINTIFF

BRIJESH HARIDAS

BY ADV.SRI.JAMSHEED HAFIZ 

RESPONDENT/DEFENDANT

RAMACHANDRAN @ UNNI AND 7 OTHERS

R1 - R5 BY ADV. SRI.RILGIN V.GEORGE R6 - R 8 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH 

J U D G M E N T 

This appeal arises from a decree by which the trial court dismissed the suit for partition. The appellant was the plaintiff and the respondents the defendants. Plaint B schedule immovable property belonged to Raru, grandfather of the plaintiff and defendants 1 to 5. Raru died in 1991. On the allegation that Raru bequeathed the property to the plaintiff and defendants 1 to 5 and they became equally entitled to it the plaintiff instituted the suit for division of the property into six and separation of his share. Later, defendants 6 to 8 were impleaded on the allegation that they claimed right over a portion of the plaint B schedule property which has been described in the plaint C schedule. Defendants 1 to 5 did not contest the suit. Defendants 6 to 8 filed a written statement contending that the plaintiff and defendants 1 to 5 have no right, title or interest in the property which is in their possession and it lies within well defined boundaries and it is not part of plaint B schedule property. After the trial the learned Sub Judge found that there is no evidence to prove that the plaint C schedule property is part of the plaint B schedule property which is sought to be partitioned and the plaintiff has no cause of action for filing the suit and accordingly, he dismissed the suit.

2. The following points arise for consideration.

i) Whether the appellant had any cause of action for filing the suit ? 

ii) Whether the decree of the trial court is liable to be set aside ? 

3. Heard the learned counsel for the appellant and respondents 6 to 8.

The points: 

4. In the suit the plaintiff prayed for partition among himself and defendants 1 to 5 plaint B schedule property and separation of his 1/6th share. Plaint C schedule property is said to be part of plaint B schedule property. The plaintiff prayed for recovery of plaint C schedule property. The cause of action for claiming partition and the cause of action for claiming recovery of possession are different. Order II Rule 4 CPC provides that only certain claims may be joined in a suit for recovery of immovable property. The Rule runs thus: 

No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except- 

(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof; 

(b) claims for damages for breach of any contract under which the property or any part thereof is held; and 

(c) claims in which the relief sought is based on the same cause of action: 

Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. 

Order II Rule 4 does not permit filing a single suit for partition and recovery of possession. This was not taken notice of the learned Sub Judge.

5. Additional issue No.6 related to the prayer for recovery of plaint C schedule property. When the suit was instituted against defendants 1 to 5, there was only one prayer, which was for partition of the plaint B schedule property and separation of the plaintiff's share. Later, defendants 6 to 8 were impleaded and the plaint was amended to incorporate the relief of recovery of plaint C schedule property, which is said to be part of plaint B schedule property that is sought to be partitioned. But the plaint does not disclose that defendants 6 to 8 are in possession of the plaint C schedule property. It also does not reveal from whom the recovery is sought for. In other words, the plaint does not disclose any cause of action for the relief of recovery of plaint C schedule property, which in turn means that the plaintiff has no cause of action against defendants 6 to 8.

6. Order 14 Rule 1 CPC explicitly says that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Sub Rule 2 explains the term material proposition. It is a proposition of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. In the present case there is not even an allegation in the plaint that defendants 6 to 8 are in possession of the plaint C schedule property which is sought to be recovered. So the trial court should not have framed an issue with regard to the prayer for recovery of possession.

7. The provision in Order 1 Rule 10 Sub Rule 4 CPC which is quoted below was not complied with by the plaintiff.

“Where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.” 

Though defendants 6 to 8 were impleaded there was no consequential amendment in the body of the plaint. Making a prayer in the relief column is not a substitute for pleadings. The trial court should have taken notice of the fact that defendants 6 to 8 were sought to be impleaded without the plaintiff alleging that he has a cause of action against them. The impleadment application should not have been allowed. When an application is filed for impleadment of a defendant, the court should insist on the plaintiff filing a consequential amendment application simultaneously.

8. It may now be examined whether the plaintiff has proved his allegation against defendants 1 to 5 who did not contest the suit. The plaintiff relied on a registered Will to claim right in the plaint B schedule property. Ext A1 is a copy of the Will. Before a Will can be acted upon the requirements in Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act are to be satisfied. In this case no attempt was made by the plaintiff to prove the Will. In Balathandayutham and another vs. Ezhilarasan (2010 (5) SCC 770) the Supreme Court held: “But when the execution of the Will is not denied, then, no burden is cast on the party who relies on the Will to prove its execution. Relying on the aforesaid principle the first appellate court held, and in our view rightly, that the existence of the first Will dated 25.9.1972 has been admitted” (emphasis supplied). So it is now settled that if the defendants admit execution of Will, no burden is cast on the plaintiff to prove its execution as provided in Section 68 of the Indian Evidence Act. In Bhagat Ram and another (AIR 2004 SC 436) the Supreme Court observed: “So far as the Will dated 15.5.1993 (read 16.5.1973) is concerned, its execution is neither denied nor disputed. The factum of the Will dated 16.5.1973 having been duly executed and attested was an admitted fact”. But the view taken by the apex court in Ramesh Verma Vs. Lajesh Saxena (2017) 1 SCC 257) is that Section 68 Evidence Act is applicable “even in a case where the opposite party does not specifically deny the execution of the document in the Written Statement”. In the case on hand defendants 1 to 5 remained absent. Before the court could have accepted Ext A1 Will, the plaintiff should have proved its execution in the manner provided in Section 68 of the Indian Evidence Act. Since that has not been done, the Will has not been proved. There is no evidence that the appellant has any right in the property sought to be partitioned.

9. I agree with the conclusion reached by the learned Sub Judge, but for different reasons. The appeal is liable to be dismissed. The points are found against the appellant.

In the result, this appeal is dismissed.