MOOLIYIL SEETHA Vs. KARIANKANDI ALIAS MUNDACHALI P KOUSALLYA

JUDGEMENT

(1.) THE following substantial questions of law are formulated in the appeal at the time of admission.

(2.) DEFENDANTS 3 to 8 in O.S.No.96 of 1989 on the file of the Munsiff Court, Kannur, are the appellants. The appeal is directed against the judgment and decree dated 12.2.1993 in A.S.No.64 of 1992 on the file of the Sub Court, Thalassery. Suit was filed for partition. The trial court passed a preliminary decree, ordering division of the plaint schedule property into 21 equal shares and allotting 4 such shares each to the plaintiff and 1st defendant, the second defendant is entitled to get 7 shares and defendants 3 to 8 together entitled to get the remaining 6 shares. The preliminary decree and judgment passed by the trial court was confirmed by the lower appellate court in appeal. The sole plaintiff, defendants 1, 2 and father of defendants 3 to 8 are the children of one Mathu.

(3.) THE trial court examined the question as to whether the plaintiff has title over the plaint schedule property, whether the plaintiff and defendants are in joint possession of the plaint schedule property and as to whether the plaint schedule property is available for partition. THE dispute was examined and decided in the light of oral and documentary evidence adduced by the parties. THE trial court on an appreciation of facts concluded that Ext.A1 is a validly executed document. As per Ext.A1 Mathu transferred the property to the plaintiff and first defendant and therefore held that the plaintiff has title over the plaint schedule property, that the plaintiff and defendants are in joint possession of the property and that the plaint schedule property is available for partition. THE court also observed that the decree in O.S.No.323 of 1982 will not bind the plaintiff and first defendant as they were not parties to that suit. On the basis of the said finding the trial court passed the decree as aforesaid.