1. Appellants are defendants 1 to 4, 6,7 and 9 in O.S.No.600/1997 on the file of the Additional Munsiff Court, Kozhikode-II. Suit was filed by respondents 1 and 2 as plaintiffs for partition. Preliminary decree was passed in the suit by the learned Munsiff declaring the entitlement of plaintiffs to get 8/18 shares in the plaint property. Plaintiffs were allowed to have division of their share in the plaint property by metes and bounds in final decree proceedings relegating equities claimed by some of the defendants also to be considered in such proceedings. That preliminary decree was challenged by defendants 1 to 7 and 9 filing an appeal reiterating the contentions resisting the suit claim for partition. In that appeal 8th defendant an assignee who purchased rights over a portion of plaint schedule property from one of the sharers, filed cross objections against the decree. The appeal and also cross objections were dismissed by learned Sub Judge, Kozhikode. Against the concurrent decision rendered by two courts below upholding the claim of plaintiffs for partition of plaint property and allotment of their shares, the above appeal has been filed.

2. Substantial questions of law raised in the appeal on which notice was ordered have been reframed after hearing counsel on both sides. Questions reframed for hearing are thus:

(1) Have not both the courts below erred in not deciding the plea of ouster canvassed on the materials placed separately, and, in entering a definite finding on that question in adjudging the claim for partition?

(2) Is not the decree granted in favour of the plaintiffs without adjudging and deciding the plea of ouster of the appellants/defendants erroneous and unsustainable under law.

3. Partition of plaint B schedule property having an extent of one acre thirty cents is claimed in the suit. Admittedly that property belonged to the thavazhi of Kottayi Kunhamma. Case of plaintiffs that plaint schedule property belonged to Kalliani Amma, daughter of Kunhamma, and her two sons Govindan Nair and Gopalan Nair is not under dispute. First plaintiff is the widow of Govindan Nair and second plaintiff is his daughter, was the case of plaintiffs to claim partition of their share in the plaint property. Kalliani Amma, mother of Govindan Nair, after his death, had passed away, and as such plaintiffs, both of them together, are entitled to have 1/2 share in the plaint property and the rest would go to the legal heirs of Gopalan Nair, defendants 1 to 7, was their case. 8th and 9th defendants were subsequently impleaded in the suit not as sharers but persons who claimed of obtaining rights in the property under documents created by some among the co-owners of the property.

4. Status claimed by plaintiffs as wife and daughter of late Govindan Nair s/o.Kalliani Amma to claim partition over the plaint property was challenged by defendants 1 to 7 contending first plaintiff was not the wife and second defendant not his daughter. On the death of Govindan Nair after the death of his mother all his rights in the property devolved upon his brother Gopalan Nair, their predecessor, and he continued as the owner in exclusive possession and enjoyment of the property till his death in 1985, according to these defendants. After his death his legal heirs, these defendants, partitioned the property among themselves and they are having absolute title over the property allotted to them, was their case. Even if plaintiffs had any right over the property it is barred by limitation and ouster according to them. A portion of the property obtained by first defendant was assigned in favour of 8th defendant and pursuant thereto that defendant had put up a construction in that property. Under an assignment deed from sixth defendant additional 9th defendant obtained right over a portion of plaint property and he also constructed a house in that property, according to these defendants. Tarwad house situate in the plaint property had been renovated