K SIVADASAN Vs. K PARVATHY

JUDGEMENT

(1.) THE following substantial question of law is formulated in the second appeal at the time of admission. Whether the courts below were justified in not considering the rights of the parties on the basis of the law applicable to them as admitted by all the parties rather than merely relying upon the pleadings in the plaint alone.

(2.) ADDITIONAL defendants 6 to 8 in O.S.No.124 of 1989 on the file of the Sub Court, Kottarakkara are the appellants. The appeal is directed against the decree and judgment in A.S.No.219 of 1995 on the file of the District Court, Kollam. The sole plaintiff filed the suit claiming partition of one half share in the plaint schedule properties on redemption of the mortgage in respect of 94 cents of land forming portion of plaint schedule item No.1. The trial court dismissed the suit finding that the plaintiff has failed to prove right or title to the plaint schedule properties. The appellants claimed division and separate possession of 3/5th share in the plaint schedule properties. Their claim for partition of the property was also found unsustainable. Plaintiff preferred A.S.No.219 of 1995 before the District Court, Kollam. The appellate court confirmed the findings recorded by the trial court and dismissed the appeal filed by the plaintiff and cross objection filed by the defendants 6 to 8. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit.

(3.) DEFENDANTS 2 to 4 in the written statement have stated that 1.29 acres inclusive of plaint item No.1 was belong to Raman Achari and Pappu Achari as per partition deed No.767/1086 and that they were in joint possession of the property.