REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.881 OF 2001

Vinodan .. Appellant

Versus

Vishwanathan ..Respondent

J U D G M E N T  

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 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  

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the trial court with the prayer that the property described in 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.”

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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  

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  

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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  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  respondent  which  will  be  a  

charge on the property of the respondent.

10. The appellant, aggrieved by the said judgment of the High  

Court, preferred this appeal before this court.  

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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, 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 appellant gave an offer  

that his client is willing to pay Rs.5,50,000/- in lieu of the share  

of the respondent.  No offer was given by the respondent 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 appellant to  

pay  Rs.5,50,000/-  to  the  respondent  within  a  period  of  four  

months.  On  receiving  the  said  amount,  the  respondent  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  respondent  to  vacate  the  portion  of  the  

building which is  presently in his possession and give  vacant  

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and  peaceful  possession  of  his  portion  of  building  to  the  

appellant in lieu of payment of  Rs.5,50,000/-.  We are granting  

long time to the respondent to vacate the portion of the building  

in his possession to avoid any inconvenience to the respondent.  

In  case  the  respondent  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  

respondent  and  handed  over  to  the  appellant.   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.

…….……………………..J.   (Dalveer Bhandari)

…….……………………..J.   (Harjit Singh Bedi)

New Delhi; February 12, 2009.

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