ULLATTIL AYISUMMA Vs. MOIDEENKUTTY

JUDGEMENT

(1.) Heard the learned counsel for the appellant and contesting respondents.

(2.) Appellant is the 9th defendant in O.S.No.229 of 2009 before the Court of Munsiff, Tirur. The suit is one for partition. According to the plaint averments, the property originally belonged to deceased Cheriya Muhammed, who is the father of plaintiff and defendants 1 to 6 and the husband of 7 th defendant. Defendant Nos.8 and 9 are assignees from some of the sharers. It is seen from the plaint averments that deceased Cheriya Muhammed had executed a settlement deed in favour of the 1 st defendant in the suit, which was challenged in O.S.No.202 of 2006 before the Sub Court, Tirur. That suit was decreed and the document on which the 1st defendant claimed an exclusive right to the property was set aside. That decree has become final. Admitted fact is that the properties scheduled to the plaint in O.S.No.229 of 2009 are available for partition. A preliminary decree for partition was passed. Learned counsel for the appellant pointed out that the averments in paragraph 4 of the plaint recognised the appellant's right as an assignee from the 1 st defendant.

(3.) It is also pointed out that I.A.No.1277 of 2011 has been filed by the appellant (9th defendant) for receiving four documents to substantiate the fact that a portion of the property had been assigned by the 1st defendant in favour of the appellant to be used as a pathway to her other properties. The document which the 1 st defendant executed in favour of the appellant is dated 28.02.2006 and registered as document No.716/2006 of SRO, Kuttipuram. Original of that document is produced along with the aforementioned interlocutory application. But, the trial court as well as the lower appellate court omitted to mark that document in evidence. That document is not disupted by the plaintiff. Plaintiff would contend that the property assigned by this document should be set apart to the share of the 1 st defendant and others shall not be mulcted with any liability.