MATHEW Vs. RAJAN

JUDGEMENT

(1.) Defendant in a suit for partition is the appellant. He is aggrieved by the judgment and decree passed by the trial court, rejecting his contention that the subject matter of the suit is not a co -ownership property of the plaintiff and the defendant, but it is a property belonging to a partnership firm, constituted by the parties to the suit. Appellant therefore contended that a suit for partition is incompetent. We heard the learned counsel on both sides. We carefully perused the lower court records.

(2.) Facts relevant for disposal of the appeal, stated shortly, are as follows: The appellant and respondent are brothers. Two others by names Varghese and Babu, are their siblings. Plaint schedule property was acquired by all the four brothers in the year 1973 as per Ext. A1 registered sale deed. A cinema theater by name 'Thavus Theater' was established in the property under a partnership by all the four co -owners. While so, a suit for dissolution of partnership and rendition of accounts was filed by the appellant and one of his brothers before the Sub Court, Thrissur as O.S. No. 1532 of 1992. The suit was decreed by the trial court. The decree and judgment had been challenged in A.S. No. 24 of 1999 before the District Court, Thrissur. That appeal was dismissed confirming the decree. Against the said appellate decree, a second appeal was filed before this Court. Pending the appeal, the parties settled their disputes amicably. Pursuant to the settlement, appellant's brother Babu assigned his rights over the plaint schedule property to the respondent through Ext. A2 document. Varghese assigned his rights over the plaint schedule property as per Ext. A3 document in favour of the appellant. A compromise under Order XXIII Rule 3 of the Code of Civil Procedure (in short, "CPC") was filed before this Court. In accordance with the compromise, this Court, as per Ext. A4 judgment, disposed of the second appeal. The compromise arrived at between the parties has been made a part of the decree in the second appeal.

(3.) The respondent/plaintiff contended that after the compromise, the property became a co -ownership property with half right devolved on the appellant and the remaining half on the respondent. Respondent wanted division of the property by metes and bounds for which the appellant was not agreeable. Hence he approached the trial court with the suit for partition.