CHELLAN Vs. SIVADASAN, S/O. MUNJALAMKOTTIL KITTA

JUDGEMENT

(1.) THE appellant is the eighth defendant in O.S.No.264 of 1983 on the file of the Court of the Additional Subordinate Judge of Palakkad. Respondents 1 and 11 are plaintiffs in the suit and respondents 2 to 7 are defendants 1 and 3 to 7 respectively therein. Respondents 8, 9 and 10 are the daughters of the deceased first defendant. The brief facts of the case are as follows:

(2.) RESPONDENTS 1 and 11 herein, instituted the suit for partition and separate possession of plaint A and B schedule properties into seven equal shares and allotment of two such shares to them. The plaintiffs and defendants 3 to 6 are the children of defendants 1 and 2. Defendants 7 and 8 are persons who claimed to have obtained assignment of some items of properties from the first defendant. Defendants 1 to 6 filed a written statement contending inter-alia that the plaint A schedule items 12 to 62 are not partible. Defendants 7 and 8 filed a joint written statement. It was contended that items 12 and 13 of the plaint A schedule are in the exclusive possession and enjoyment of the seventh defendant, he having obtained an assignment of the said items from the first defendant as per an assignment deed registered as document No. 738/1962 of S.R.O., Kuzhalmannam. The appellant herein, the eighth defendant in the suit contended that he is in exclusive possession and enjoyment of item No.7 of the plaint A schedule pursuant to and in terms of an agreement for sale dated 12.06.1971 entered into between him and the first defendant and that later, on a joint application filed by him and the first defendant, a certificate of purchase was also issued to him in respect of the said item of property. Defendants 7 and 8 also contended that if items 11, 12 and 13 of the plaint A schedule are found to be partible, they should be set apart to the share of the first defendant. Such a plea was specifically put forward in paragraph 4 of the joint written statement filed by defendants 7 and 8.

(3.) AGGRIEVED by the preliminary decree for partition passed on 31.03.1987, to the extent it related to items 12 to 62, the first plaintiff filed A.S.No.362 of 1987 in this Court. While the said appeal was pending, the first defendant passed away and thereupon, the appellant in A.S.No.362 of 1987 and respondents 2 to 7 therein were recorded as his legal heirs and supplemental respondents 10 to 13 were impleaded as his other legal heirs. By judgment delivered on 24.03.1994, a learned single Judge of this Court allowed A.S.No.362 of 1987 and held that items 62 and 63 are also available for partition. A modified preliminary decree was accordingly passed, directing division of plaint A schedule items 1 to 11 and 60 to 62 into 7 equal shares and allotment of two such shares to the plaintiffs. The learned single Judge also held that the direction to set apart item 11 to the share of the first defendant shall stand. The first plaintiff thereupon filed A.F.A. No.68 of 1994 in this Court. A.F.A.No.68 of 1994 was heard and disposed of by a Division Bench of this Court by judgment delivered on 11.12.2009. The Division Bench confirmed the finding of the learned single Judge as regards items 1 to 11, 45 to 59 and 60 to 62. However, as regards items 12 to 44, the Division Bench set aside the preliminary decree for partition passed by the trial court and remitted the suit back to the trial court for fresh disposal, reserving liberty with the plaintiffs to amend the pleadings in respect of items 12 to 44.