Philomina @ Valsa Poulose and Others v. State of Kerala and Kochi Municipal Corporation and Others

W.P.(C)No.6521 of 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** ## **WP(C) NO. 6521 OF 2020** ## **PETITIONERS:** 1 PHILOMINA @ VALSA POULOSE AGED 70 YEARS W/O. LATE C.K.PAULOSE, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034 2 PAULSON PAULOSE AGED 43 YEARS S/O. LATE C.K.PAULOSE, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034 3 PETSON PAULOSE AGED 40 YEARS S/O. LATE C.K.PAULOSE, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034 4 PETSY PAULOSE AGED 45 YEARS D/O. LATE C.K.PAULOSE, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034 BY ADVS. SRI S.GOPAKUMAR SMT.T.M.BINITHA SRI.JOSEPH KODIANTHARA (SR.) ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM, PIN-695 001 2 KOCHI MUNICIPAL CORPORATION, PARK AVENUE, ERNAKULAM-682 011, REPRESENTED BY SECRETARY 3 THE SECRETARY, KOCHI MUNICIPAL CORPORATION, PARK AVENUE, ERNAKULAM-682 011 4 THE ADDITIONAL SECRETARY KOCHI MUNICIPAL CORPORATION, PARK AVENUE, ERNAKULAM-682 011 W.P.(C)No.6521 of 2020 2 5 C.K.VARGHESE AGED 66 YEARS S/O. LATE KOCHUVAREETH,CHAKIATH HOUSE, CHERNANELOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM-682 034 **ADDL.R6 TO R9 IMPLEADED** ADDL.R6 C.K. PAULOSE & BROTHERS, CHAKKIATH ESTATE, BYE-PASS JN. EDAPPALLY, ERNAKULAM - 682 024. ADDL.R7 C.K. THOMAS, AGED 68, S/O. LATE KOCHUVAREETH, CHAKIATH HOUSE, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM - 682 034. ADDL. R8 C.K. MATHEW, AGED 64, S/O.LATE KOCHUVAREETH, CHAKIATH HOUSE, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM - 682 034. ADDL. R9 C.K. VINCENT, AGED 62, S/O. LATE KOCHUVAREETH, SINTHOOR, KANJIRAKKAD, PERUMBAVOOR - 683 545. (ARE IMPLEADED AS ADDITIONAL R6 TO R9 AS PER ORDER DATED 09-03-2020 IS I.A. 01/2020 IN W.P(C) 6521/2020 BY ADVS. R1 BY SRI B.S.SYAMANTHAK R2 TO R4 BY SRI.P.FAZIL,SC, COCHIN CORPORATION SRI.D.G.VIPIN R5 & R7 BY SRI.SABU P.JOSEPH SRI.C.N.SREEKUMAR SMT.MANJU PAUL SRI.ANIL PRASAD R6, R8 & R9 BY SRI.P.MARTIN JOSE SRI S.SREEKUMAR (SR.) SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.MANJUNATH MENON SRI.AJAY BEN JOSE SMT.HANI P.NAIR SRI.R.GITHESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.01.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING: W.P.(C)No.6521 of 2020 3 ## **T.R. RAVI, J.** **--------------------------------------------** W.P.(C)No.6521 of 2020 -------------------------------------------Dated this the 5th day of April, 2022 ## **JUDGMENT** The writ petition has been filed challenging Ext.P14 order dated 29.2.2020 issued by the 4th respondent, Additional Secretary of the 2nd respondent Corporation. On 14.2.2020 an order had been issued whereby the assessment of the property tax regarding a building was directed to be changed from that of a firm to that of the petitioners. The above said order was cancelled by Ext.P14 order on the basis of a complaint stated to have been received from Sri C.K.Varghese, who happens to be the brother of the predecessor-in-interest of the petitioners, late C.K.Poulose. 2. Heard Sri Joseph Kodianthara, Senior Advocate, instructed by Sri S.Gopakumar on behalf of the petitioners, Sri S.Sreekumar, Senior Advocate, instructed by Sri P.Martin Jose on behalf of respondents 6,8 and 9, Sri P.Fazal, Standing Counsel, on behalf of respondents 2 to 4, Sri B.S.Syamanthak, Government Pleader, on behalf of the 1st respondent and Sri Sabu P.Joseph, learned counsel for respondents 5 and 7. 3. The short facts that are necessary for the purpose of disposing of this writ petition are as follows. W.P.(C)No.6521 of 2020 4 4. Late C.K.Poulose along with his four brothers purchased 73.312 cents of land through five separate sale deeds during 1978. They obtained Ext.R6(b) permission for construction of a building from the Cochin Corporation (hereinafter referred to as the Corporation) on 23.10.1981. Ext.R6(c) dated 19.7.1982 was issued granting permission for the construction of the multistoreyed commercial building by the Greater Cochin Development Authority (GCDA for short) on the basis of an application dated 3.11.1981 from Late C.K.Poulose and his brothers, though the application shows the applicant as M/s.C.K.Poulose and Brothers. Almost a year later, on 18.10.1982, late C.K.Poulose and his brothers entered into Ext.R6(a) partnership agreement for carrying on business under a firm name M/s C.K.Poulose and Brothers at Cochin Bypass Junction, Edappally, and they appointed their father Sri C.P.Kochu Vareeth as an Administrator for the purpose of supervising the construction and for conduct of the business. The object of the partnership is stated to be to construct a shopping complex-cum-lodge in the property purchased by them and to do business and run a lodge in the premises. After completion of the construction, the Corporation of Cochin issued an assessment order on 16.7.1987 which is an exhibit marked in Ext.P2 copy of the O.P.No.11022 of 1996. It can be seen therefrom that the assessment related to the ground floor and was in the name of W.P.(C)No.6521 of 2020 5 Sri C.K.Poulose exclusively. Even before the construction of the other floors had not been completed, a notice was issued on 4.1.1989 by the Tahsildar, Kanayannur to Sri C.K.Poulose seeking to correct the assessment order by invoking Section 15 of the Kerala Building Tax Act, 1975. On 9.8.1989, Sri C.K.Poulose died. Thereafter, the firm was reconstituted on 28.8.1989 including the legal heirs of Sri C.K.Poulose as partners. On 19.10.1989, the Tahsildar, Kanayannur issued another notice regarding short assessment of building tax. The notice was issued in the name of deceased C.K.Poulose. However, the Corporation of Cochin, on 2.6.1990, issued certificates of registration of the building. The certification shows that the 1st floor to the 4th floor of the building were registered in the individual names of the four brothers of late C.K.Poulose and the ground floor was registered in the name of the legal heirs of late C.K.Poulose jointly. That is, the parties had taken the registration as if they are separate owners of individual floors of the building. On 24.1.1991, the portion of the landed property forming part of the building compound and purchased in the name of Sri C.K.Poulose was acquired for the widening of NH45. The possession of the property was taken. 5. On 25.3.1993, the Tahsildar issued a notice to the petitioners stating that the ground floor portion alone had been assessed in the name of Sri C.K.Poulose and the other floors have W.P.(C)No.6521 of 2020 6 been omitted to be assessed along with, which according to the Tahsildar was a mistake, that needed rectification. The widow of C.K.Poulose submitted a reply stating that the first floor alone belongs to her and the other floors belong to the brothers of late C.K.Poulose and that the building has been constructed with the funds brought in by all of them and hence there was nothing wrong in the assessment in individual name. By proceedings dated 7.1.1994, the Tahsildar issued orders revising the tax by considering the entire building as one unit. An appeal was preferred by the petitioners and the brothers of Sri C.K.Poulose as Appeal No.930 of 1994. The Revenue Divisional Officer by order dated 25.6.1996 found that sanction for construction was obtained in the joint names and hence there is an attempt to evade tax by showing that each floor is constructed by different persons. The appeal was hence dismissed. An original petition was filed as O.P.No.11022 of 1996 challenging the revision of assessment. The writ petition had been filed by the legal representatives of late C.K.Poulose and the four brothers of late C.K.Poulose jointly as individuals and not in the capacity of a firm. By judgment dated 13.7.2005 produced as Ext.P3 in the writ petition, this Court found that the order dated 16.7.1987 whereby Sri C.K.Poulose was assessed for the first floor is to be treated as intact for all purposes. The Court reserved liberty to the Revenue authorities to W.P.(C)No.6521 of 2020 7 assess the four floors other than the ground floor after examining the contentions that are raised before them. It was specifically held that the assessment should be only with respect to the area excluding the ground floor of the building. 6. Earlier, petitioners 2 and 3 had filed O.S.No.719 of 2003 before the Munsiff Court, Ernakulam seeking a permanent prohibitory injunction against two of the brothers of late C.K.Poulose, from trespassing into or disturbing the possession or doing anything injurious to their interest in respect of shop room Nos.34/13 and 34/14 (present Nos.41/10 & 41/11) of Corporation of Cochin. The suit was dismissed since the petitioners therein failed to take out a commission to prove their possession as claimed in the suit. The petitioners state that thereafter an amicable settlement was arrived at, and the petitioners continued with their possession. Ext.P4 is the plaint in O.S.No.719 of 2003 and Ext.P5 is the judgment. The prayer in Ext.P4 is only to restrain defendants 1 and 2 therein from trespassing into the plaint schedule property or disturbing plaintiff's possession or doing anything injurious to the plaintiff's interest and it related to only two shop rooms. Even though the court had raised an issue on title to the property, the same was not considered and decided, since the plaintiffs had not paid court fee for the same. This aspect is clear from the observation of the Court in the judgment W.P.(C)No.6521 of 2020 8 Ext.P5 that though a heap of evidence had been adduced, the court is not bound to give an adjudication on the title and is deciding only on the question of plaintiffs' possession. Thereafter, the Court went ahead to consider the entire evidence on record. 7. In paragraph 19 of the judgment, the Court has observed that it had come out in evidence that no portion of the property on which the building is situated belonged to late C.K.Poulose and hence it is difficult to find independent possession with respect to the ground floor in favour of the plaintiffs. The court went ahead to observe that without land it cannot be presumed that the claim raised by the plaintiff is legally maintainable. The said observation cannot be endorsed as legally correct, since as far as the Indian law is concerned, the common law principle that anything attached to land belongs to the land does not apply. The judgment was rendered on 30.9.2004. It is thereafter that this Court had disposed of O.P.No.11022 of 1996 as per Ext.P3 judgment specifically finding that the assessment of tax can be done only excluding the ground floor which is already assessed in the name of late C.K.Poulose. 8. According to the petitioners, during 2019, disputes arose regarding the title to the buildings situated in the ground floor which had originally been assessed in the name of late C.K.Poulose. O.S.No.669 of 2019 was filed by petitioners 2 and 3 W.P.(C)No.6521 of 2020 9 before the Munsiff's Court, Ernakulam. The petitioners submit that the defendants in the suit had produced the property tax receipt with respect to the buildings, stating that property tax has been paid by the partnership firm and was not paid individually in the name of late C.K.Poulose or his legal heirs. The petitioners submit that on further enquiry, they came to know that the assessment was continuing in the name of Sri C.K.Poulose from 1987 and 18 years after the death of Sri C.K.Poulose, without any notice or consent from the legal representatives, an order was issued on 19.3.2007 whereby the name of the assessee was changed as C.K.Poulose & Brothers. In the above circumstances, the 2nd petitioner submitted Ext.P6 representation before the 3rd respondent pointing out the above facts and seeking to revoke the order whereby the assessment was changed to the name of the partnership firm. The petitioners thereafter filed W.P.(C)No.25601 of 2019 which was disposed of by Ext.P7 judgment directing the 3rd respondent to take up Ext.P6 representation and pass orders on the same after hearing the petitioners. The Revenue Officer of the 2nd respondent issued Ext.P8 notice dated 3.2.2020 to the petitioners asking them to appear for a hearing on 6.2.2020 along with necessary documents. The petitioners submitted a request on 13.2.2020 to condone the delay in seeking revocation of the change made in the assessment register regarding the ownership W.P.(C)No.6521 of 2020 10 of the building. Ext.P10 is the affidavit submitted along with Ext.P9. On 14.2.2020 the 2nd respondent effected the change in Registry to the name of the petitioners and the memo to that effect is produced as Ext.P12. Ext.P11 is the receipt showing the payment of fine and the payment of fee for the ownership change. On 24.2.2020, the petitioners were issued Ext.P13 series ownership certificates regarding the said buildings. However, on 29.2.2020, the 2nd respondent issued Ext.P14 order whereby the change in Registry made favouring the petitioners was again revoked. Ext.P14 would show that it was done on the basis of a complaint dated 28.2.2020 filed by Sri C.K.Varghese. 9. The writ petition has been filed challenging Ext.P14 on several grounds. One of the main grounds is that the petitioners were never put on notice before cancelling the change of Registry in their name. Another ground is that the buildings were registered in the name of the predecessor-in-interest of the petitioners late C.K.Poulose and it was continuing as such from 1987 and 18 years after the death of Sri C.K.Poulose, and without any notice to the legal heir of C.K.Poulose and without their consent, an ownership change was effected in favour of the partnership firm; which cannot be sustained as it is a nullity. It is hence submitted that subsequent change effected in the name of the petitioners is only a correction of a mistake. It is also W.P.(C)No.6521 of 2020 11 contended that the order Ext.P14 does not even consider the effect of Ext.P3 judgment of this Court wherein it was specifically held that the change of Registry can be made only with respect to the area excluding the ground floor. Ext.P14 also relies on the judgment in O.S.No.719 of 2003 which according to the petitioners is legally faulted since the said suit was only a suit which was decided on possession and that too regarding two of the rooms on the ground floor. 10. The petitioners specifically contend that neither at the time of Ext.P5 nor at the time of submission of application in the year 2006, the building was treated as an asset of a firm. Ext.P16 is the final accounts of the firm for the period 2004-2010. Ext.P16 is relied on to show that the building has not been included as an asset. A reading of Ext.P16 will show that the above contention is correct. The fixed assets of the firm do not include any land or building. In 2007 when the change of Registry was effected in favour of the firm, the Building was not part of the assets of the firm. It is further contended that Exts.P14 and P19 have been issued by the very same person. It is pointed out that one of the reasons stated in Ext.P14 is that the petitioners have not filed a writ petition against Ext.P5 and as there is no judgment cancelling Ext.P5, assessment is to be restored in the name of the partnership. It is contended that such a conclusion is not W.P.(C)No.6521 of 2020 12 warranted, firstly because no writ petition can be maintained against the judgment of the civil court and secondly since the judgment does not decide the title to the building and as such, cannot in any way have the effect of altering the assessment already made in the name of late C.K.Poulose as early as on 16.7.1987. So long as there is no request for change of ownership by the legal heirs of the deceased owner in a manner known to law, the respondents have absolutely no authority to change the name of the owner of the building in the Registry. 11. Respondents 6, 8 and 9 contend that the partnership firm was formed for the purpose of constructing a shopping complex-cum-lodge and for doing business, as can be seen from Exts.R6(a) partnership deed. It is contended that Exts.R6(b) and R6(c) would show that the building permit was granted to the firm on an application submitted by the firm. However, it is to be noted that all the above permissions and applications are prior to the formation of the partnership firm. It is submitted that the building so constructed by the firm is the asset of the firm and has been managed by the firm till date. It is further contended that neither the petitioners nor their predecessor have dealt with the rooms on the ground floor exclusively. Another contention taken is that the property which had been acquired in the name of late C.K.Poulose had been later acquired for widening of NH-47 as per notification W.P.(C)No.6521 of 2020 13 dated 24.1.1991 and possession was taken on 30.3.1992 and only a small portion was left after such acquisition. It is contended that the legal representatives of late C.K.Poulose have received the compensation also. The contention is that at present no portion of the building occupies the land owned by C.K.Poulose. It is contended that the 2nd petitioner was the Managing Partner of the firm from 2017 to 2019 and as he was filing the tax returns and looking after the affairs of the firm, he was aware of the assessment in the name of the firm. In short, the contention is that the petitioners cannot claim ownership of the buildings on the ground floor of the building exclusively, that the assessment had been changed to the name of the firm in 2007 itself and had continued in that manner with the knowledge of the petitioners, one of whom was also the Managing Partner for some time, that lease deeds have been executed showing the firm as the owner of the building, that financial statements shows that the building has been treated as business asset of the firm by all the partners which includes the petitioners as well, that the judgment of the civil court binds the petitioners and they are not entitled to take a contention that they have exclusive ownership over the ground floor of the building and hence, Ext.P14 which only restores the entry in the Registry regarding the ownership of the building in favour of the firm, cannot be challenged by the petitioners who are W.P.(C)No.6521 of 2020 14 partners of the firm having knowledge about the change, as can be seen from the records kept by the firm. 12. Respondents 2 to 4 have filed a counter affidavit. They contend that Ext.R2(a) application dated 23.11.2006 was received by the Corporation, that legal opinion was sought and that based on Ext.P5 judgment an opinion was received stating that assessment of the building in the name of the partnership firm can be made so long as Ext.P5 judgment was in force. Curiously, Ext.R2(a) does not say anything about the ground floor of the building. It only says about an earlier letter dated 25.10.2006 wherein it was requested by the firm that tax payment may be made only in the name of the firm instead of the four partners, namely, C.K.Thomas C.K.Kochu Varghese, C.K.Mathew and C.K.Vincent. Apparently at the time of sending Ext.R2(a), the firm did not have any intention to include the property which is already assessed in the name of late C.K.Poulose, for the purpose of assessment of property tax as a single unit, the plausible reason being the building tax assessment in the name of late C.K.Poulose which was confirmed by Ext.P3 judgment of this Court. However, the 2nd respondent proceeded to change the entire assessment in the name of the firm including the buildings which had already been assessed in the name of late C.K.Poulose. Ext.R2(c) is produced, which is an order rejecting Ext.P6 request for change of W.P.(C)No.6521 of 2020 15 registry, since assessment was made in the name of the firm on the basis of Ext.P5 judgment and the partnership deed. Curiously, the above fact is not reflected in the statement prepared to be sent to the Standing Counsel for the Corporation who was appearing in W.P.(c)No. 25601/2019, as can be seen from Ext.R6(g). The counter affidavit further says that on the basis of Ext.P7 judgment, Ext.P8 hearing notice was issued to the petitioners and the change was effected after hearing them. The counter affidavit also says that later, on the basis of the complaint filed by Sri C.K.Varghese on 28.2.2020, the assessment was again changed to the name of the firm. Exts.R2(c) to R2(k) documents have been produced to show that the change of the name of the firm had been effected in 2011. The proceedings will show that the firm was represented by the then Managing Partner Sri C.K.Thomas and throughout the proceedings it was the firm which had been represented and there was no individual notice to the petitioners who are the legal representatives of late C.K.Poulose and whose name in the assessment register was sought to be changed. The effect of Ext.P3 judgment has not been considered at all. 13. During the hearing, this Court felt that the files of the 2nd respondent should be called for, for verifying the fact whether the order Ext.P14 was issued after hearing the parties. The W.P.(C)No.6521 of 2020 16 documents have been made available by the counsel for the Corporation. The complaint against the change of assessment made in favour of the petitioners was submitted on 28.2.2020 and orders were issued on 29.2.2020 itself. The File Note on 29.2.2020 made by the Deputy Secretary says that the order changing the Registry to the name of the petitioners was done without properly understanding the judgment in O.S.No.719 of 2003 and the legal opinion dated 19.2.2007 and hence it is decided to cancel those orders and to restore the earlier order. It can thus be seen that except for this noting, none of the affected parties had been put on notice nor heard before such a decision was taken. 14. I have considered the documents placed before the court and the arguments advanced on either side. Ext.R6(a) partnership agreement dated 18.10.1982 says that the object of the partnership shall be to construct the shopping complex-cum lodge in Sy.Nos.16/20-4, 16/19-1 and 17/1 for the purpose of doing business and running a lodge in the said premises. The document does not say anything about the building or the land being the asset of the firm. Ext.R6(d) dated 18.3.2002 is the reconstitution of the partnership firm. It can be seen from Ext.R6(d) that after the death of Sri C.K.Poulose, the firm had been reconstituted on 28.8.1989 by including the legal heirs of late C.K.Poulose. In Ext.R6(d), two of the daughters of late C.K.Poulose W.P.(C)No.6521 of 2020 17 retired from the partnership. The document reiterates the object of the partnership as running a boarding and lodging business in the building of Chakkiath Estate comprising of five floors and to do any other business as the partners may decide upon from time to time. Apparently, since the construction was already over, Ext.R6(d) does not refer to the object of construction of shopping complexcum-lodge as contained in Ext.R6(a). The significance is that the business was only relating to running of boarding and lodging business in the building of Chakkiath Estate comprised in five floors and to do any other business that the partners may decide from time to time. The clause relating to capital specifically says that the capital of the firm shall be the amount standing to the credit of the partners as at the end of the year. This document again does not say anything about the ownership of the building. Ext.R6(h) produced along with the additional counter affidavit to show that the petitioners along with other partners had executed an agreement as early as on 7.7.2000 with the State Bank of Travancore for leasing out the building also does not show that the building belonged to the partnership. Instead, what it says is that the lessors are owners of the building complex. The agreement is not executed as an agreement between the partnership firm and M/s State Bank of Travancore, but instead as an agreement between the owners individually and the Bank. The document does W.P.(C)No.6521 of 2020 18 not make any reference to the partnership firm. Ext.R6(i) is another agreement dated 10.2.2007 executed between the owners along with the partnership firm in favour of the State Bank of Travancore. This document was relied upon to say that the firm is also a lessor. However, a reading of the document shows otherwise. The document specifically says that parties 1 to 7 are the co-owners of the building and party No.8 who is the partnership firm has been duly authorised by parties 1 to 7 to provide utility services like generators, etc. The document specifically excludes the partnership as the owner of the building. This document in fact goes to show that the object of the partnership is to do boarding and lodging business. To the same effect is Ext.R6(l), which is another rent agreement executed between the owners and M/s.Aiswarya Tourist Home. The document further says that the parties had together constructed the building called Chakkiath Estate. It does not say that the firm constructed the building. Ext.R6(m) is however a rent agreement which is executed on 1.11.2011 wherein the Managing Partner of the firm who has executed the document states that the partnership firm is the owner of the building No.34/9 which was sought to be rented out. This document is executed after the change of ownership was made to the name of the firm. The respondents also relied on Ext.R6(o), which is the judgment in W.P.(C)No.6521 of 2020 19 W.P.(C)No.4273/2012 wherein this Court had observed that it is admitted that the firm is the owner of the building. However, the said judgment cannot bind the petitioners herein since they are not parties to the judgment and the writ petition itself was filed by two of the partners against one of the tenants and the Managing Partner of the firm. The petitioners in the said writ petition as well as the then Managing Partner are all persons who are claiming that the properties in the ground floor belongs to the firm as against the claim of the petitioners that it belonged all the while to late C.K.Poulose. So long as the said issue had not been raised as an issue in the writ petition with all interested persons as parties and decided on merits, it cannot bind the petitioners herein. Some of the rent deeds produced showing that they have been executed by the Managing Partner are all documents which have come into existence after the change of Registry in the name of the firm. The contentions based on the said documents have to be appreciated in the background of the fact that the petitioners cannot be attributed knowledge about the change made in the Registry. It is also to be taken note of that according to the petitioners, the partnership is only for the purpose of running the lodging house and for conducting the business in the building and the said object cannot be understood to mean that the buildings which are being utilised for the purpose of the business of the W.P.(C)No.6521 of 2020 20 partnership have become the asset of the partnership. Respondents 6 and 9 have produced the profit and loss account for the year ended 31.3.2010 as Ext.R6(u). The said document also does not show the building has been treated as an asset of the firm at the time of commencement of the partnership business. A close reading of schedule B relating to fixed assets in Ext.R6(u) will show that a heading 'building' has been added in the said financial year, but the written down value as on 1.4.2009, the beginning of the year is shown as 'zero' which itself shows that from 1987 to 1.4.2009, no building was available as an asset of the partnership firm. The schedule shows that the buildings were added during the financial year. It is very curious to note that the first addition is during the first six months of the financial year for a sum of Rs.3,40,485/- and the second addition is in the second half of the financial year for a sum of Rs.5,29,834/-. There is nothing to show any corresponding expenditure in that regard during the said financial year or to show a corresponding increase in the capital account of the partners, if the building had been brought in as a partnership asset. The total worth of Rs.8,70,319/cannot be the value of the entire building which is a five storeyed building in Edappally. The copies of the statement of accounts for the subsequent years also do not improve the case of respondents 6 and 9 since all those accounts only show the deduction of 10% W.P.(C)No.6521 of 2020 21 depreciation on the value of the building shown in 2010 balance sheet and nothing more. Except for helping the accounting purposes or to show a lesser income for the purpose of taxation, the entries do not in any way conclusively show that the entire building belonged to the partnership or had been brought in as an asset of the partnership by the partners. 15. Sri S.Sreekumar, Senior Counsel, placed reliance on the judgment of the Hon’ble Supreme Court in **Addanki Narayanappa v. Bhaskara Krishnappa [AIR 1966 SC 1300]** , to submit that once a property has been brought into a partnership for the purpose of the joint venture, it ceases to be the exclusive property of the partner. There can be no different opinion on the said legal principle. The question is whether the property in this case was brought into the partnership as a capital, so as to form part of the assets of the partnership. Ext.P3 is a judgment which was rendered by this Court on an original petition filed by the petitioners and the contesting respondents jointly, where all of them had contended for the position that each of the brothers were separate owners of different floors of the building. The specific case put forward in the original petition was that the landed property was purchased in individual names and construction was made with separate funds and that reopening the assessment made in 1987 and clubbing the constructions made in W.P.(C)No.6521 of 2020 22 different periods as one unit is not correct. The prayer in the original petition was to quash the reassessment of the building tax by clubbing together all the floors of the building and the order passed in appeal. In the appeal filed by the petitioners and the contesting respondents, challenging rectification of assessment, the prayer is to set aside the order of assessment No.B6-10182/87 dated 7.1.1994 and to pass an order that the earlier assessment order No.10182/87B4 dated 16.7.1987 is valid and cannot be reopened. It is further prayed that there should have been separate assessment for building tax based on the respective share of the respondents 6 to 9 herein. Ext.P3 is a judgment rendered on the above pleadings and it is binding on the petitioners and respondents 6 to 9. The respondents 6 to 9 cannot be heard to contend otherwise so long as Ext.P3 judgment has not been varied in a manner known to law. It cannot also be countenanced that the ownership for the purpose of property tax assessment should be different from the ownership for the purpose of building tax assessment. This Court is hence of the opinion that the judgment in **Addanki Narayanappa (supra)** will not apply to the fact situation. In **Heather Luiz v. Nirene Dennis Luiz & Ors. [2018 KHC 276]** , a Division Bench of this Court considered the issue with reference to Section 14 of the Partnership Act, 1932 and held that unless it is shown that a property has been brought into W.P.(C)No.6521 of 2020 23 the stock of the partnership firm, it cannot be treated as a partnership asset. The Court held that in case of a running partnership firm, if the building is brought into the stock of the firm, atleast the balance sheet and profit and loss account should show such fact. 16. In **Arjun Kanoji Tankar v. Santaram Kanoji Tankar [(1969) 3 SCC 555]** , the Hon’ble Supreme Court held that property belonging to a person, in the absence of an agreement to the contrary, does not, on the person entering into a partnership with others, become the property of the partnership merely because it is used for the business of the partnership. It is held that it will become property of the partnership only if there is an agreement—express or implied—that the property was, under the agreement of partnership, to be treated as the property of the partnership. The financial accounts of the firm in the case on hand shows that till the year 2010, there was no building in the asset list of the firm, though it is admitted that the ground floor of the building was in existence at least from 1987 onwards. None of the partnership deeds show that the building has been brought into the partnership as a capital of the partners. There is nothing on record to show that the ground floor of the building which had been assessed exclusively in the name of the petitioners’ W.P.(C)No.6521 of 2020 24 predecessor had been brought into the partnership either by means of an agreement or by conduct of parties. Even after 2010, while a head “building” is included in the Balance Sheet, it is only shown as an addition but with no corresponding entries to show any expenditure towards such addition or a corresponding increase in the capital of the partners. In fact, the counsel for the petitioners points out that that in 2010 balance sheet the capital account of 6 of the partners shows negative balance, which cannot be the case if building is brought in as capital in that accounting year. In view of the facts pleaded and the evidence on record, it cannot hence be held that a mere entry under the head “building” in the asset list from the year 2010 will not conclusively show that the building has been brought into the stock of the partnership. This Court is of the opinion that there is neither any express agreement nor any implied agreement between the partners to bring the building into the partnership as an asset of the partnership. 17. Reference is made to the judgment in **Sarala & Anr. v. Vijayan & Anr. [2012 (3) KHC 419]** , Ext.P5 judgment in which possession has been found in favour of the partnership firm and Ext.R6(f) in which there is a reference of the dispute regarding title to arbitration, to submit that the Secretary of the Corporation W.P.(C)No.6521 of 2020 25 cannot decide on the question of possession or title. I do not think that the issue pertains to a decision by the Secretary on the question of title to the ground floor of the building. The issue that is involved is whether in a case where this Court had categorically found that the ground floor has to be assessed for building tax in the name of the predecessor of the petitioners and the Corporation had also initially assessed the property tax in respect of the very same buildings in the separate names of the brothers of late C.K.Poulose and the writ petitioners, the Corporation can change the ownership in the Registry to the name of the partnership firm without any authority. Ext.P3 judgment has not been set aside in a manner known to law. Neither late C.K.Poulose nor his legal heirs have made any request to the Corporation for making any change in Registry. The action in making changes in the Registry in such circumstances is challenged. Even though the Corporation corrected the mistake based on directions issued by this Court, the correction made was again revoked without notice to the petitioners. Hence it is not a case where the petitioners have to be relegated to either the civil court or for arbitration. The question is purely one of administrative law, which is to be decided by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India. 18. Regarding the contention that the building does not W.P.(C)No.6521 of 2020 26 occupy any land belonging to late C.K.Poulose and hence the petitioners cannot lay a claim of ownership on the building, it is settled by decisions of the Privy Council later followed by various decisions rendered by the High Courts in India that the English doctrine relating to buildings “ _quic quid plantatur solo, solo cedit”_ does not apply in India. [See **Narayan Das v. Jatindra Nath (AIR 1927 PC 135)** , and **Gouri & Ors. v. Xavier @ Benny & Anr. (2012 (3) KHC 317)** ]. 19. Apart from the above, the fact remains that admittedly the petitioners were not put on notice regarding the revocation of the order whereby the change of Registry in their favour was effected. Ext.P14 does not show that the affected parties were put on notice. The files produced by the Corporation clearly show that there was no notice issued to the petitioners. As such, even on that reason alone Ext.P14 is liable to set aside. In the result, the writ petition is allowed. Ext.P14 order is set aside. The change of assessment to the name of the petitioners shall continue to be in force till it is altered either on the basis of any application submitted by the assessees or on the basis of any judgment of an appropriate court declaring the title in favour of the firm. Sd/- **T.R. RAVI JUDGE** dsn W.P.(C)No.6521 of 2020 27 ## **APPENDIX OF WP(C) 6521/2020** PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE RESPONDENT NO.2 DT 02/06/1990 EXHIBIT P2 TRUE COPY OF THE CERTIFICATE COPY OF THE OP NO.11022/1996 - EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN OP NO.11022/1996 EXHIBIT P4 TRUE COPY OF THE PLAINT IN OS NO.719/2003 OF MUNSIFF COURT, ERNAKULAM - EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN OS NO 719/03 OF MUNSIFF COURT, ERNALKULAM - EXHIBIT P6 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER NO. BEFORE RESPONDENT NO.2 SEEKING TO CHANGE THE ASSESSMENT IN THE NAME OF PETITIONERS DT 02.09.2019 - EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WPC NO.25601/209 DT 07.01.2020 - EXHIBIT P8 TRUE COPY OF THE HEARING NOTICE DT 03.02.20 - EXHIBIT P9 TRUE COPY OF THE APPLICATION SUBMITTED AS PER DIRECTION OF THE RESPONDENT NO.3 FOR CONDONING THE DELAY IN APPLYING FOR TRANSFER THE ASSESSMENT DT 13.02.2020 - EXHIBIT P10 TRUE COPY OF NOTARIZED AFFIDAVIT SUBMITTED BY THE PETITIONERS ACKNOWLEDGEMENT TO OBEY ANY COURT DIRECTING TRANSFER OF ASSESSMENT AS REQUIRED BY RESPONDENT NOS 2 TO 4 - EXHIBIT P11 TRUE COPY OF THE RECEIPT DT.13.02.20 ISSUED FOR REMITTING RS. 6,035/- TOWARDS FINE AND OTHER CHARGES - EXHIBIT P12 TRUE COPY OF MEMO DT 14.02.20 ISSUED INTIMATING TRANSFER OF ASSESSMENT HELD IN THE NAME OF M/S. C.K.PAULOSE AND BROS TO THE NAME OF PETITIONERS - EXHIBIT P13 TRUE COPY OF OWNERSHIP CERTIFICATES ISSUED IN THE NAME OF PETITIONERS INR RESPECT OF BUILDING NO CC NO.41/1 TO 11 AND 41/16 - EXHIBIT P14 TRUE COPY OF THE ORDER OF THE RESPONDENT NO.4 DT 29/02/2020 REVERSING THE ASSESSMENT HELD IN THE NAME OF PETITIONERS - EXHIBIT P15 TRUE COPY OF THE LEGAL OPINION GIVEN TO THE W.P.(C)No.6521 of 2020 28 CORPORATION DT 18.02.2007 EXHIBIT P16 TRUE COPY OF THE STATEMENT OF ACCOUNTS OF THE PARTNERSHIP FIRM FROM YEAR ENDING 31.03.2004 TO 31.03.10 EXHIBIT P17 TRUE COPY OF CLARIFICATORY LETTER ISSUED BY PETITIONERS DATED 10/10/2019. EXHIBIT P18 TRUE COPY OF THE REPLY ISSUED BY RESPONDENT NO.2 DATED 31/10/2019. EXHIBIT P19 TRUE COPY OF I.A.NO.1/2020 IN WPC.NO.25601/19 FILED BY 5TH RESPONDENT. RESPONDENT EXHIBITS EXHIBIT R2(A) TRUE COPY OF THE APPLICATION DATED 23.1.2006 FILED BY MR.C.K VINCENT ON BEHALF OF THE FIRM M/S C.K. PAULOSE AND BROTHERS TO THE 2ND RESPONDENT COREPORATION - EXHIBIT R2(B) TRUE COPY OF THE MEMO NO EYR3/9038/2006 DATED 17.3.2007 ISSUED BY THE SECOND RESPONDENT CORPORATION - EXHIBIT R2(C) TRUE COPY OF THE NOTICE NO EY R3/9348/19 DATED 20.9.2019 ISSUED BY THE 2ND RESPONDENT CORPORATION EXHIBIT R2(D) TRUE COPY OF THE COMPLAINT DATED 28.2.2020 FILED BY MR.C.K. VARGHESE BEFORE THE 2ND RESPONDENT CORPORATION EXHIBIT R2(E) TRUE COPY OF THE ORDER OF THE PROCEEDINGS NO B6-10182/07DATED 14.9.2011 ISSUED BY THE TAHSILDAR, KANAYANNUR TALUK EXHIBIT R2(F) TRUE COPY OF THE ORDER OF ASSESSMENT NO B610182/07 DATED 14.9.2011 ISSUED BY THE TAHSILDAR, KANAYANNUR TALUK EXHIBIT R2(G) TRUE COPY OF THE NOTICE OF DEMAND NO 10182/07 DATED 14.9.2011 ISSUED BY THE TAHSILDAR, KANAYANNUR TALUK EXHIBIT R2(H) TRUE COPY OF THE BUILDING TAX RECEIPT NO 4415700 DATED 27.9.2011 ISSUED BY THE VILLAGE OFFICER,EDAPPALLY EXHIBIT R2(I) TRUE COPY OF THE BUILDING TAX RECEIPT NO 424126 DATED 26.11.211 ISSUED BY THE VILLAGE OFFICER,EDAPPALLY EXHIBIT R2(J) TRUE COPY OF THE BUILDING TAX RECEIPT NO 3422395 DATED 22.3.2012 ISSUED BY THE VILLAGE OFFICER , EDAPPALLY W.P.(C)No.6521 of 2020 29 |EXHIBIT R2(K)|TRUE COPY OF THE BUILDING TAX RECEIPT NO| |---|---| ||2929478 DATED 26.6.2012 ISSUED BY THE VILLAGE| ||OFFICER, EDAPPALLY| |EXT.R6(A):|TRUE COPY OF PARTNERSHIP DEED DT.18.10.1982.| |EXT.R6(B):|TRUE COPY OF ORDER OF THE 2ND RESPONDENT| ||DT.23.10.1981| |EXT.R6(D):|TRUE COPY OF ORDER DT.19.7.82.| |EXT.R6(D):|TRUE COPY OF PARTNERSHIP DEED DT.18.3.2002| |EXT.R6(E):|TRUE COPY OF COMPLAINT SUBMITTED BY M/S| ||C.K.POULOSE & bRS. DT.27.3.19 BEFORE THE| ||POLICE.| |EXT.R6(F):|TRUE COPY OF ORDER DT.4.9.2019 IN IA 5080/19| ||IN OS 669/2019 OF 2ND ADDL.MUNSIFF COURT,| ||ERNAKULAM.| |EXT.R6(G):|TRUE COPY OF PROCEEDINGS OF THE 3RD RESPONDENT| ||OBTAINED UNDER RIGHT TO INFORMATION ACT.| |EXT.R6(H):|TRUE COPY OF AGREEMENT DT.7.7.2000 EXECUTED| ||BETWEEN THE PETITIONERS ALONG WITH OTHER| ||PARTNERS WITH STATE BANK OF TRAVANCORE.| |EXT.R6(I):|TRUE COPY OF LEASE AGREEMENT DT.10.2.2007.| |EXT.R6(J):|TRUE COPY OF LEASE AGREEMENT DT.28.10.2009.| |EXT.R6(K):|TRUE COPY OF AGREEMENT FOR LEASE DT.13.7.2012.| |EXT.R6(L):|TRUE COPY OF LEASE AGREEMENT DT.15.1.2015.| |EXT.R6(M):|TRUE COPY OF LEASE AGREEMENT DT.1.11.2011| |EXT.R6(N):|TRUE COPY OF MINUTES OF THE MEETING IN MARCH| ||2010| |EXT.R6(O):|TRUE COPY OF JUDGMENT DT.`12.3.2012 IN WPC| ||4273/2012 OF THIS COURT.| |EXT.R6(P)|TRUE COPY OF MINUTES OF THE MEETING IN| ||NOVEMBER, 2008| |EXT.R6(Q):|TRUE COPY FO AGREEMENT DT.1.9.2005| |EXT.R6(R)|TRUE COPY OF LEASE AGREEMENT DT.2.7.2017| ||EXECUTED BETWEEN THE THIRD PETITIONER WITH| ||INDUS TOWERS LTD.| |EXT.R6(S):|TRUE COPY OF MINUTES OF THE MEETING HELD ON| ||24.3.2006.| |EXT.R6(T):|TRUE COPY OF MINUTES OF THE MEETING HELD ON| ||5.1.2008.| |EXT.R6(U):|TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE| ||FINANCYAL YEAR 2010-11| |EXT.R6(V):|TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE| ||FINANCYAL YEAR 2011-12| W.P.(C)No.6521 of 2020 30 EXT.R6(W): TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE FINANCYAL YEAR 2012-13 EXT.R6(X): TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE FINANCYAL YEAR 2013-14 EXT.R6(Y): TRUE COPY OF MINUTES OF THE MEETING HELD ON 27.10.2016 EXT.R6(Z): TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE FINANCIAL YEAR 2014-15 EXT.R6(AA): TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE FINANCIAL YEAR 2015-16 EXT.R6(AB): TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE FINANCIAL YEAR 2016-17 EXT.R6(AC): TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE FINANCIAL YEAR 2017-18 EXT.R6(AD): TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE FINANCIAL YEAR 2018-19 EXT.R6 (AE): TRUE COPY OF PROFIT AND LOSS ACCOUNT FOR THE FINANCIAL YEAR 2019-2020 EXT.R6(AF): TRUE COPY OF PLAINT IN OS 303/2019 BEFORE THE SUB COURT, ERNAKULAM FILED BY THE PETITIONER. EXT.R6(AG): TRUE COPY OF MINUTES OF THE MEETING HELD ON 12.4.2019.