DEVAKI AMMA Vs. KUNHIRAMAN NAIR

JUDGEMENT

(1.) The plaintiffs in O. S. No. 37 of 1973 on the file of the Subordinate Judge's Court. Tellicherry are the appellants in this appeal. They instituted the suit for partition and recovery of possession of 10/14 shares in the plaint B schedule properties on the basis that they belonged to an undivided tavazhy consisting of the plaintiffs and the defendants. The defendants contended that items Nos. I and 2 of the plaint B schedule alone belonged to the tavazhy and are available for partition and that the remaining items included in the plaint B schedule are the separate acquisitions and that the tavazhy has no right, title or interest in the rest of the properties included in the plaint B schedule. It was also contended by the defendants that the plaintiffs are barred by res judicata from putting forward the plea that plaint items Nos. 3 to 15 are tavazhy properties by reason of the decision rendered by the Munsiff's Court, Koothuparamba in O. S. No 149 of 1961 as per the judgment and decree evidenced by Exts B3 and B2, that only plaint B schedule items Nos. 1 and 2 belonged to the tavazhy and that the remaining items included in the plaint schedule are not tavazhy properties

(2.) The lower court upheld the contention put forward by the defendants that Exts. B2 and B3 operate as res judicata against the plaintiffs in respect of the claim for partition of plaint items Nos 3 to 14. On the merits also the court below found that what is available for partition as the common asset belonging to the tavazhy is only the tenancy right in plaint B schedule items Nos. 1 and 2 inclusive of the house situated therein and that the remaining items Nos. 3 to 14 of the plaint B schedule do not belong to the tavazhy. Accordingly, the plaintiffs were granted a preliminary decree for partition and separate possession of 10/14 shares in items Nos. 1 and 2 of the plaint B schedule only, with proportionate share of profits from the same for three years prior to the institution of the suit, and future mesne profits.

(3.) The correctness of the aforesaid conclusions recorded by the court below is challenged by the appellants in this appeal.