AJIMON Vs. SANTHAMMA P. K.

JUDGEMENT

(1.) This R.S.A. is directed against the judgment and decree in A.S.No.03/2019 dated 9.2.2021 on the file of the Additional District Court-I, Kalpetta, Wayanad (hereinafter referred to as 'the first appellate court') pursuant to the order dated 23.1.2019 in O.S.No.25/2016 on the file of the Sub Court, Sulthanbathery (hereinafter referred to as 'the trial court').

(2.) The appellants are supplemental defendants 8 and 9 in a suit for partition of 5 items of properties on the basis that they belonged to one Kunhan and was inherited by his children, the plaintiffs and defendants respectively. The plaintiffs, the defendants 1 to 4 and deceased Sukumaran are the children of late Kunhan born in his wedlock with Kalyani. The defendants 6 and 7 are the children born to late Sukumaran and defendant No.5 is the widow of late Sukumaran. The defendants 1 and 5 to 7 contended that Kunhan had another wife, namely, Gouri and had two children. Without admitting the relationship, by way of abundant caution, the plaintiff impleaded supplemental defendant Nos.8 and 9 to resolve the dispute finally. Upon impleadment, the defendants 8 and 9 contended that Kunhan had executed a Will No.56/1994 of the SRO, Panamaram bequeathing item Nos.1, 2, 3 and 5 in the plaint B schedule to additional defendants 8 and 9. The additional defendants 8 and 9 contended before the trial court that since the plaintiffs are not admitting them as co-owners, a suit for partition against them is not maintainable. The trial court framed an issue regarding the maintainability of the suit. As per order dated 23.1.2019, the trial court held that the suit is maintainable even against the defendants 8 and 9. The said order is challenged before the first appellate court. By the judgment dated 9.2.2021, the first appellate court held that an appeal is not maintainable from a finding of the trial court. Accordingly, the appeal was dismissed by the first appellate court. Hence, this R.S.A. has been preferred. For the sake of clarity, the parties are hereinafter referred to as the plaintiffs and defendants according to their status in the trial court unless otherwise stated.

(3.) Based on the contention raised by the defendants, the trial court framed the following issues:-