JOSEPH ABRAHAM Vs. OUSEPH EAPEN

JUDGEMENT

(1.) THIS appeal is by the plaintiff against the final decree in a suit for partition of his one-fourth share of an extent of nearly 88 acres of paddy land. The Jenm right in the same belongs to Karinganampalli of Nedumprath palace. There was an otti to four sisters--, one Bhagirathi (deceased), and defendants 13 to 15. Each of them was entitled to an undivided 1/4th share. Bhageerathi's legal representatives are defendants 10 and 11. On 4-11-1121 M. E. Ext. P-1 pattom chit was executed by the 1st defendant and one deceased Ouseph (represented by his legal representatives, defendants 2 to 8) to defendants 10 and 13, representing all the four co-owners. This was in respect of the entire 88 acres. Defendant 1 died pending suit and the legal representatives are defendants 9 and 16 to 19. By Ext. D-8 dated 17-4-1952 there was a division for convenience of enjoyment among the lessees. The 1st defendant was put in possession of the western half of an extent of nearly 44 acres and Ouseph, of the eastern half, of the same extent. The 9th defendant took a lease-deed from defendants 13 and 14 regarding the western half. In 1953, Bhageerathi's legal representative sold his undivided 1/4th share in the otti right to the plaintiff by ext. P-2. The plaintiff also obtained 1/4th share of the jenm right under Ext. P-3 from the 21st defendant who had become the owner of the said right under exts. P-7 and P-12. In pursuance of these rights the present suit was instituted for partition. Paragraphs 11, 13 and 15 of the plaint are clear that it was the undivided 1/4th share in the reversionary right of the plaintiff that was sought to be partitioned. By a preliminary judgment dated 28-1-1959 the plaintiff's right to partition of a 1/4th share was declared. The question of physical delivery of possession of the" share was to be considered after vacating the statutory stay then in operation under the provisions of the Kerala Act 1 of 1957.

(2.) THE 20th defendant had obtained right to a one-fourth share in enforcement of a hypothecation. He filed O. S. No. 230 of 1958 for partition of his share. Plaintiff and all the concerned persons were parties to the suit. On 28-7-1959 that suit ended in a preliminary decree for a 1/4th share in the entire 88 acres. A final decree followed on 15-7-1960 by which the plaintiff (the 20th defendant herein) was allotted the C plot in Ext. P-1 plan -- in occupation of the 7th defendant The 7th defendant surrendered that plot (plot E in Ext. P-4 plan to be noticed presently) to the plaintiff by a joint application by both, Ext. P-15 dated 27-2-1961.

(3.) THE present suit ended in a preliminary decree on 28th January 1959, and a final decree followed on 8-8-1960. Plot A in Ext. P-1 plan was allotted to the 13th defendant, plot B to the 14th defendant, plot C (2) to the plaintiff, and plot d to the 15th defendant. There was thus duplication of allotment in respect of C plot by the two final decrees.