PETHIRU THANKAYYAN Vs. PETHIRU BHASKARAN

JUDGEMENT

(1.) This second appeal is filed by the 1st defendant in O.S.No.1036 of 1988 before the Principal Munsiff's Court, Neyyattinkara. The suit is one for partition and separation of joint right. It was decreed by the trial court on 31.01.1990 and a preliminary decree for partition was passed. The appellant, aggrieved by the judgment and decree, preferred A.S.No.395 of 1990 before the District Court, Thiruvananthapuram. And it was heard and disposed by the III Additional District Judge vide judgment dated 09.03.1998. The lower appellate court, on reconsideration of the entire issues, dismissed the appeal confirming the judgment and decree passed by the trial court.

(2.) Short facts in the plaint are thus: Plaint schedule property belonged to Joseph Pethiru, father of the plaintiff. He died in 1959. On his death, his rights devolved on the 4th defendant (wife) and children, who are the plaintiff, defendants 1 to 3 and deceased Loice. 4th defendant got 1/3rd share in the property and the plaintiff, defendants 1 to 3 and Loice together got 2/3rd share. On the death of Loice, her right devolved on her husband, the 13th defendant and her children, defendants 5 to 1 Defendants 14 and 15 have some right under the 1st defendant and 14th defendant had constructed a building in the suit property. Despite demanding partition, the 1 st defendant was not amenable and therefore the suit for partition.

(3.) 1St defendant/appellant filed a written statement with the following contentions: 2.25 acres of land comprised in survey No.113/1 of Chenkal Pakuthy was owned by the 4th defendant, mother of the 1st defendant. The said land was originally belonging to Palamthottathu tarwad. Members of that tarwad sold the property to the 4th defendant permitting her to redeem the mortgage executed by members of the tarwad. For redemption of mortgage, 4th defendant filed O.S.No.1435 of 1122 ME before the Munsiff's Court, Neyyattinkara and obtained a decree. She took delivery of the property through court on 26.09.1956. After delivery, she was in possession and enjoyment of the property. In respect of that property, the plaintiff has no right or possession and therefore it is not partible. Defendants 1 and 4 got jenm right in respect of 2 acres comprised in survey No.113/2 of Chenkal Village and they got purchase certificate in respect of that property. They are in possession and enjoyment of the same since long years. While so, 4th defendant gifted 60 cents comprised in survey No.113/2 to the 1st defendant on 24.08.1988. In continuation of the prior possession, 1st defendant keeps possession of the same. Vasudevan Pillai Ayyappan Pillai got 1.58 acres as B schedule in the partition deed No.3946 of 1122 ME. After his death, the right devolved on his wife Lekshmi Pilla Karthiyayani Amma and daughter Padmakumari Amma. They assigned their rights to the 1st defendant as per a release deed dated 26.10.1972. As such, the appellant/1st defendant got absolute right and possession over 1.58 acres and 60 cents mentioned above, amounting to a total extent of 2.18 acres. That property is not liable to be partitioned. All the persons, who are in possession of the property, are not made parties to the suit. Plaintiff was residing in Karnataka State for the last 25 years. He has no right or possession over the property. There are various buildings in the property and persons in possession thereof are not made parties to the suit. Suit is bad for non-joinder of parties. Plaint claim is not allowable. The suit is liable to be dismissed.