MATHEW JOSEPH Vs. JESSY

JUDGEMENT

(1.) THIS 2nd appeal arises from a preliminary decree for partition passed by the learned Munsiff, Mavelikkara in O.S.No.346 of 2003 and confirmed by the learned Additional District Judge, Mavelikkara in A.S No.177 of 2006.

(2.) RESPONDENT/second plaintiff and the appellant/defendant are the children of the deceased first plaintiff and the late Pappy Joseph. The suit property belonged to the said Pappy Joseph as per Ext.A1 and A2. Pappy Joseph died in the year, 1961. Respondent and the deceased first plaintiff claimed that on Pappy Joseph dying intestate, the suit property devolved on them and the appellant. Respondent and the deceased first plaintiff prayed for partition and separate possession of their 1/3 share each. They also prayed for a decree for prohibitory injunction against the appellant cutting down trees from the suit property.

(3.) THE appellant challenged that judgment and decree in the first appellate court. During the pendency of the appeal, the first plaintiff died. It is admitted that her legal heirs are the appellant and the respondent. The first appellate court confirmed the finding of the trial court but, taking into account the death of the first plaintiff, the preliminary decree for partition was modified allotting = share each to the appellant and the respondent. That judgment and decree of the first appellate court are under challenge.