MANAKKAL NADAKUMAR, S/O. LATE NARAYANA VARRIER, AGED 56 YEARS, TEACHER, RESIDING AT NAVASAMEDAM, EAST NADA, PAYYANNUR SUBRAMANYA SWAMY TEMPLE, PAYYANNUR AMSOM DESOM, P.O. PAYYANNUR Vs. M. SUBRAMANYAN, S/O. LATE LAKSHMIKUTTY VARASSYAR, AGED 74 YEARS, SCHOOL MANAGER, RESIDING AT EAST NADA, PAYYANNUR, SUBRAMANYA SWAMY TEMPLE, PAYYANNUR AMSOM DESOM, P.O. PAYYANNUR, PIN

JUDGEMENT

(1.) The 8th defendant in OS.No.256/2011 on the file of the Sub Court, Payyannur is the revision petitioner herein. The plaintiff, who is the first respondent herein filed OS.No.256/2011 on the file of the Sub Court, Payyannur for partition of the plaint schedule properties and allotment of his share in the property. Earlier the same plaintiff filed OS.No.9/2009 for the same relief and in that suit. Contesting defendants appeared and filed written statement claiming certain right in themselves and denying the partibility of the properties and a commission was taken out and the commissioner filed a report and thereafter since the plaintiff felt that extensive amendment is required in the plaint for sustaining the plaint, he not pressed that suit and filed the present suit OS.No.256/2011 for the same relief.

(2.) The 8th defendant and others entered appearance and filed a written statement denying the right of the plaintiff and also raised a plea that the present suit is barred by res judicata in view of the fact that the earlier suit OS.No.9/2009 was dismissed as not pressed which will amount to abandoning the right under Order 23, Rule 1 (4) of the Code of Civil Procedure. On the basis of the plea along with other contentions regarding the availability of the properties for partition and denying the right to the plaintiff to claim partition of the plaint schedule properties, issues were framed of which the following issues namely whether the suit is maintainable and whether the suit is barred by res judicata were framed as issue No.1 and additional issue No.1 respectively and the same were heard as preliminary point under Order 14, Rule 2 (2) of the Code and the court below after hearing both sides answered the issue in favour of the plaintiff holding that the suit is not barred by res judicata and the suit is maintainable. That finding of the court below is being challenged by the petitioner by filing the above revision.

(3.) Heard Sri. M.V. Amaresan, learned counsel appearing for the revision petitioner, Sri. Mohan Jacob George, learned counsel appearing for the first respondent and Sri. Gracious Kuriakose, senior counsel appearing for the 10th respondent. Others remained absent.