PONNUCHAMI Vs. CHELLAMUTHU

JUDGEMENT

(1.) A suit for partition, after the appearance of the defendants and the submission of written statement raising a counter claim, was not proceeded with by the original plaintiffs. Consequently, the trial court allowed the first and second defendants to transpose as additional plaintiffs and to proceed with the suit. The suit ended in a preliminary decree for partition. It was taken up in appeal by the original plaintiff on the ground that a decree was granted against him without affording a right of hearing. But the First Appellate Court repelled his contentions and dismissed the appeal by upholding the preliminary decree granted. Aggrieved by the said decree and judgment, the original plaintiff came up with this appeal. During the pendency, original plaintiff passed away, legal heirs were impleaded and proceeded with the appeal.

(2.) The first and second defendants were permitted to transpose as additional plaintiffs after raising a counter claim in the suit. The trial court granted a preliminary decree for partition of plaint schedule and counter claim B schedule property by allowing the plaint claim and the counter claim.

(3.) The original plaintiff in the suit had claimed exclusive title over counter claim B schedule property based on a purchase certificate. Counter claim was raised by the first and second defendants claiming co-ownership right over the said property, left out by their deceased father Kunjan alleging that he had obtained the same on the demise of his brother, Velayudhan. In short, the trial court and the First Appellate Court granted a decree for partition of plaint schedule property as well as counter claim schedule property without considering whether it is permissible to have divergent interest between the original plaintiffs and the transposed plaintiffs and the impact of transposition of some of the defendants without the consent of the original plaintiffs. But the decree is seen passed against the original plaintiffs also. It was taken up in appeal by the original plaintiffs, but failed. Hence this second appeal.