ABRAHAM Vs. ANNAMMA VARGHESE

JUDGEMENT

(1.) Plaintiff in O.S.No.95/2012 on the file of the Sub Court, Cherthala is the appellant.

(2.) The suit was filed for partition. The brief facts are as follows: The plaintiff and the defendants 1 to 4 and late Clara Joseph are the children and the legal heirs of late Varghese and his wife late Villamma. The defendants 5 to 11 are the children of late Clara Joseph. The defendants 12 to 15 are the legal heirs of the 3rd defendant who died during the pendency of the suit. Late P.C.Varghese and his wife Villamma died intestate. So, the entire property owned by them devolved upon their legal heirs, i.e. the plaintiff and defendants 1 to 4 and late Clara Joseph. Plaint A schedule property consists of two items of property and plaint B schedule property is another item of property. Plaintiff has claimed 1/6th share over the entire plaint schedule property. Before the court below the 4th defendant alone contested the matter by filing a written statement. But at the time of evidence, he did not appear before the court and in fact there was no one to contest the case. The court below dismissed the suit on the finding that the suit is bad for partial partition. The said judgment and decree are under challenge in this appeal.

(3.) Admittedly, the plaintiff and defendants 1 to 4 and late Clara Joseph are the children of late Varghese and his wife Villamma. They died intestate. On their death, the properties owned by them devolved upon their six children. Smt.Clara Joseph, the sister of the plaintiff and the defendants 1 to 4 expired and her husband Sri Joseph is also no more. Their legal heirs are the defendants 5 to 11. During the pendency of the suit, defendant No.3 also expired and the defendants 12 to 15 are his legal heirs. Exts.B1 and B2 are possession certificates of the building in the property, which stands in the name of late Joseph, the husband of Clara and the 3rd defendant, who is no more. The court below accepting the contention of the 4 th defendant that the buildings were constructed by their father, held that the suit is bad for partial partition. It is submitted by the learned counsel for the plaintiff/appellant that in fact he did not get an opportunity to adduce proper oral evidence before the court below and only Exts.A1 to A7 were marked. As the dismissal of the suit was without giving an opportunity to him to adduce proper evidence, injustice was caused to him. In fact, he is ready to adduce evidence and contest the matter as he is entitled to get 1/6th share over the property scheduled as plaint A and B. The judgment is not a well-reasoned one based on the pleadings and evidence, hence an interference by the court is inevitable.