The main legal point established in the judgment is that the absence of a specific plea in the plaint regarding the nature of the property does not justify remanding the matter if the parties have fully presented their evidence and understood the rival contentions.

Defendants 13,15,16,42,44 to 51,54 and 55 are the appellants. The suit was for partition of the plaint B schedule property.

2. Briefly stated the plaintiffs case is as follows: The property belonged in jenm to the grand-mother of the plaintiff Chinna Appissi and her sister Kunchi Appissi and brother Kunhunni Nambiar and they were in possession of the plaint schedule property. On the death of Chinna Appissi, the property vested with the plaintiffs and defendants jointly and they are in joint possession and enjoyment. Defendants 13,42 and 52 sold some timber trees without the consent of the plaintiff and other defendants. So, a petition was filed before the police and the matter was amicably settled. But still, defendants 13,14 and 52 were making attempts to cut and sell trees. In the circumstances, plaintiffs sought a partition, but it was not heeded to by contending defendants. It is in these circumstances, the plaintiff sought for partition and separate possession of 1/56 share out of the plaint schedule B property.

3. Defendants I to 11 and 17 to 31 filed written statements admitting the plaint claim. 13th defendant filed written statement repudiating the contention of the plaintiff. Defendants 15, 16, 42, 43,44 and 55 also filed a written statement taking similar contention as that of the 13th defendant. The contesting defendants averred that the plaint B schedule property belonged in jenm to Koodallur Mana and under the Mana, Cherupara Madhathil Sankunni Nair and Raman Nair were holding the property. The 13th defendant obtained the lease hold right from Sankunni Nair and Raman Nair about 35 years back. In 1970, there was a partition in the thavazhi of the 13th defendant and the plaint schedule property was set apart to the shares of 15th and 16th defendants and they are in possession of the property. They also denied that the 1st defendant was the Karanavan of the tarwad consisting of plaintiffs and defendants and contended that even if the plaintiff had any right, that was lost by adverse possession and limitation.

4. Issue No.1 framed by the trial court was "whether the property mentioned in the plaint was a thavazhi property in which the plaintiff and defendant have got right." So the area of controversy between the parties is whether the property belonged to the thavazhi of plaintiff and defendants or whether the contention of the contesting defendants that the lease hold right obtained by Sankunni Nair and Raman Naif vested in the 13th defendant and in a partition in the family of 13th defendant the property was allotted to 15th and 16th defendants. This question has been elaborately considered by the trial court. It came to the conclusion that there is absolutely no evidence to show the 13th defendant was holding the property for and on behalf of the tarawad. In that view the trial court held that the plaint B schedule property is not liable to be partitioned. The trial court did not think it necessary to consider the question of adverse possession and limitation in view of the above findings and no findings were entered on issues 2 to 7. On appeal, the learned Subordinate Judge set aside the finding and remanded the matter for fresh disposal after giving the parties an opportunity to amend the plaint.

5. In this appeal, learned counsel for contesting defendants vehemently contended that no grounds have been made out for remanding the matter. Though there is no specific plea in the plaint that the B schedule property belonged to the tarwad, the plaint proceeds on the basis that the property belonged to the tarwad consisting of plaintiffs and defendants and it is on that basis, the relief of partition was sought. Those defendants who supported the plaintiffs claim for partition have stated in the written statement that the property belonged to the tarwad. The entire focus was on the question whether the property is a tarwad property or whether 13th defendant obtained the lease hold right in the property for hi