AYYAPPAN CHELLAPPAN Vs. AYYAPPAN THANKAPPAN

JUDGEMENT

(1.) The suit, involved in this revision petition is one for partition and also for setting aside a partition deed relating to plaint - schedule items 1 and 2. The first defendant is the revision petitioner and the plaintiff is the respondent. The revision is against an order of the court below on a preliminary issue namely. "Whether the suit is bad for mis joinder of parties and mis joinder of causes of action."

(2.) The facts are concisely stated thus: The plaint items 1 and 2 were purchased in the name of the plaintiff and defendants 1 and 2 in the year 1960. Later the defendants 1 and 2 without the consent of the plaintiff entered into a partition deed No. 161/89 and the said deed is sought to be set aside. One third share of the plaintiff in item 1 and 2 is liable to be allotted to him. The plaint item No. 3 belongs to the first defendant and his deceased brother Gopalan who died issue less and on his death, his half share devolved on plaintiff and defendants 1 to 4 and thus the plaintiff is entitled to one tenth share over plaint item No. 3.

(3.) The contention of defendants 1 and 2 is that the suit is not maintainable and the plaintiff, though participated in preparing the partition deed, withdrew from executing the partition at the last moment. There is mis joinder of cause of action as well as mis joinder of parties. It is in view of this contention raised by the defendants the above preliminary issue was framed by the court below.