DEVU Vs. PREETHA

JUDGEMENT

(1.) The plaintiffs in O.S.No. 232/1998 on the file of the Subordinate Judges' Court of Kozhikode are the appellants in this appeal. The said suit was one for partition and separate allotment of 6/12 shares of the plaintiffs over two items of immovable properties situated in Kozhikode. Item 1 is admeasuring 24 cents and item 2 has an extent of 831/2 cents. Both the properties are within the limits of Calicut Corporation. The suit was resisted by the defendants contenting, inter alia, that the suit was barred by res judicata and Order II, Rule 2 C.P.C.

(2.) The court below framed six issues for trial. Out of those issues, issue No. 1 was whether the suit was barred by res judicata in view of the dismissal of an earlier suit O.S.No. 164/1979. The 2nd issue was whether the plaintiffs have any right to obtain partition as prayed for. Issue Nos. 1 and 2 were decided as preliminary issues against the plaintiffs. In view of the findings recorded on those issues on 10-11-1998, the court below did not pronounce upon the rest of the issues and the suit was accordingly dismissed with costs as not maintainable. Hence this appeal by the plaintiffs.

(3.) We heard Advocate Sri C. K. Ramakrishnan, the learned counsel appearing for the appellants/plaintiffs and Advocates Sri T. Sethumadhavan and Smt. Karthika appearing for the contesting respondents.