PUNNAKKAL SURESH Vs. SARASWATHI

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S.No. 59/2012 on the files of the Munsiff-Magistrate Court, Ponnani, while the respondent herein is the 3rd defendant in that suit. The suit is one for partition. Some of the defendants raised a plea of non-joinder and wanted certain additional defendants to be impleaded. They have also raised a counter- claim for addition of a property, which was not included in the plaint schedule, but were partible among the plaintiff and the defendants, as also among the parties sought to be impleaded. I.A.No. 1510/2015 was filed by the respondent herein for impleadment. The I.A. was dismissed by the trial Court at the first instance. That order was challenged before this Court in O.P.(C) No.2499/2015 and vide Ext.P6 judgment the defendants were directed to file an application for framing additional issue regarding non-joinder, and the trial Court was directed to dispose of the I.A. afresh. In accordance with Ext.P6, the contesting defendants filed I.A.No.87/2016 at Ext.P7 raising an issue regarding the non-joinder of parties and vide Ext.P8 the application for joinder of parties was allowed. It is that order of the learned Munsiff-Magistrate that stands challenged by the plaintiff in this Original Petition.

(2.) The plaint schedule property belonged to the father of the plaintiff and the defendants, late Karappayi, who had two wives and twelve children born in the wedlock. The first wife of Karappayi is no more. The second wife survived him and inherited the property along with the children in both the marriages. Out of the legal heirs, seven children released their partible interest in the property to the plaintiff by executing a release deed at Ext.P3. Those who have released their right in favour of the plaintiff are not impleaded in the suit.

(3.) The defendants 1, 3 and 5 filed Ext.P2 written statement together with a counter-claim regarding an item of property, which also belonged to Karappayi, but was not included in the partition suit. The property included in the counter-claim belongs to the legal heirs, including those who have released their right in favour of the plaintiff vide Ext.P3 deed. Hence they are sought to be impleaded, for they too are entitled to a share in the property.