ALIYAMMA ISOW Vs. JOSEPH

JUDGEMENT

(1.) This appeal by the first defendant in a suit for partition is filed along with an application seeking condonation of delay of 30 days in filing the appeal. She says that she was suffering from back pain and was, therefore, prevented by sufficient cause from filing this appeal within the time prescribed. We would have been inclined to issue notice on that ground for condonation of delay. But we thought it appropriate to look into the merits of the appeal as well since nothing forbids a look into the merits in terms of Order 41 Rule 11 of the Code of Civil Procedure even while considering an application under Section 5 of the Limitation Act in connection with a first appeal under Section 96 CPC.

(2.) The plaintiff and defendants are siblings. They are the children of Joseph Joseph and Aleyamma Ouseph, both of whom are no more. The relationship between the parties and the fact that the suit property originally belonged to their parents are not in dispute. The plaintiff alleged that the first defendant had damaged the cow shed in the plaint schedule property and that she is liable for damages. The court below refused to grant any decree for damages. It granted a decree for partition of the suit property into 5 shares, one to be alloted to the plaintiff. This alone is under challenge by the first defendant.

(3.) The plea of the first defendant before the court below was that during the life time of the parents, they had provided some land for the plaintiff and had also supported the construction of a building and therefore, he is not entitled to partition. There is no shred of material admitted in evidence, or at least placed before the court below, to show that the parents had given any item of property to the plaintiff.