Decided on July 15,2003

Anil Fire Works Factory Respondents


- (1.) This appeal has been preferred by the assignee of the first defendant. Suit was instituted by the first respondent herein as plaintiff praying for a decree for partition of 1 / 4th rights of the plaint schedule property with mesne profits at the rate of Rs. 1,200/- per year. Trial Court decreed the suit. In appeal it was confirmed. Aggrieved by the same this appeal has been preferred.
(2.) When the matter came up for hearing, counsel appearing for the respondents raised a preliminary objection that the appeal itself is not maintainable. We will deal with that question after examining the facts of the case. Plaint schedule property belongs to defendants 1 to 4. Fourth defendant is the son of the first defendant and has a share. Plaintiff had instituted suit. O.S. No. 163 of 1974 before the Munsiff's Court, Sathur as against fourth defendant which was decreed. The decree was sought to be executed by filing E.P. No. 383 of 1976 which was filed before the Munsiff's Court. Palghat, for attachment and sale of the fourth defendant's rights in the property. Fourth defendant's right was sold and purchased by the plaintiff on 27-11-1978 in execution of the decree and the court confirmed the sale on 31 - 1 - 1979. Plaintiff obtained symbolic, delivery as per sale certificate dated 31-1-1979 and was recorded on 11 - 02-1980. Plaintiff is therefore in joint possession of the property belonged to defendants 1 to 3 and his 1/4th right in the same.
(3.) First defendant filed a written statement stating that the share of the fourth defendant was not available to be attached in E.P. No. 383 of 1976 on the file of the Munsiffs Court, Palghat since he had no saleable interest in the property at that time. Fourth defendant was doing business in the property and had kept sales tax arrears for 1968-69, 1969-70 and 1970-71 amounting to Rs. 22,467-25. State had got paramount charge over the share of the fourth defendant. Consequently it had initiated revenue recovery proceedings against him. In exercise of the powers conferred under the Revenue Recovery Act, District Collector, Palghat had brought fourth defendant's properties to sale after due publication. First defendant purchased the said property in public auction held on 28-10-1980 which was later on confirmed as per District Collector's order dated 30-12-1980. Plaintiff is therefore estopped from claiming any right in the property. It was contended that the suit was liable to be dismissed. In order to establish his case plaintiff had produced Exts. A1 and A2 documents. No oral evidence was adduced on the side of the plaintiff. On the side of the defendants first defendant got examined as DW - 1 and Exts. B1 to B2 were produced. Trial Court framed an issue whether the plaintiff had acquired any valid title in respect of 1/4th share of the fourth defendant and. also examined the question as to whether Government had any prior charge and the auction sale was subject to such charge. After examining the oral and documentary evidence the Trial Court came to the conclusion that first defendant did not succeed to the fourth defendant's share of the property pursuant to revenue sale. It was therefore held that the plaintiff was entitled to get preliminary decree for partition and mesne profits from defendants 1 to 3 from the date of the plaint: Judgment was delivered on 27-09-1983.;

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