1. The plaintiffs in a suit for partition are the appellants. The suit was originally filed by the first plaintiff Aleema Umma. It was contended by the original first plaintiff that the plaint schedule property originally belonged to his brother Moosa and he assigned the property to the plaintiff. Two suits were filed as O.S. 277/1977 and O.S. 258/1977 by Aleema Umma against deceased Alathel Muhammed who is the husband of the first respondent. Muhammed mentioned therein who was the defendant in those suits filed a suit against the deceased first plaintiff Aleema Umma as O.S. 339/1977. All those three suits were tried together. The two suits filed by the first plaintiff Aleema Umma were dismissed holding that the first plaintiff could not prove her exclusive possession of the property claimed by her. Similarly, O.S.339/1977 was also dismissed holding that Muhammed the defendant therein could not prove his exclusive right over the property.

2. Ext.A3 is the common judgment passed in the earlier three suits, O.S. Nos. 258/77, 277/77 and 339/1977. As stated earlier, the two suits filed by Aleema Umma mentioned above were dismissed holding that she could not prove exclusive possession over the suit property. Similarly, the third suit filed by Muhammed contending that he was in exclusive possession of the property was also dismissed holding that he could not prove exclusive possession of the property. Aleema Umma filed two appeals challenging the dismissal of her two suits. Those two appeals were also dismissed. No appeal was filed by Muhammed as against the judgment and decree in O.S. 339/1977 and hence, the judgment and decree passed in that suit became final. Challenging the common judgment passed against the judgment and decree in O.S. 277/1977 and O.S. 258/197, Second Appeals were filed as S.A. 317/1983 and 330/1983. Ext. A6 is the common judgment passed by this Court in those two Second Appeals. In Ext.A6 it was observed by this Court:

“The two courts have concurrently found that the plaintiff could not prove her exclusive possession over the plaint schedule property. The court held that the building as well as the appurtenant land are in the joint possession of the plaintiff and defendants. That is a finding of fact reached by the two courts. No substantial question of law arises in this matter.

5. O.S. No. 339/1977 was only a suit for injunction. Injunction was refused as the parties were in joint possession. I find no reason to interfere with the judgment of the lower appellate court and the two appeals are dismissed, without costs”.

3. During the pendency of the present suit the original plaintiff died. Her assignees were brought on record as supplemental plaintiffs. It was held by the trial Court that simply because there was an observation made by this Court in Ext.A6 judgment that the parties can pursue their remedy for partition, it cannot be said that the plaintiffs were held to have proved their title to the property. Since no document could be produced by the plaintiff to show the title of the deceased first plaintiff, the suit was dismissed. The appellate court concurred with that view.

4. The following substantial questions of law have been re- framed in this case:-

(i) Whether a suit for partition can be dismissed solely on the ground that the plaintiff has not proved her proprietary title?

(ii) Can not partition and separate possession be claimed based on the joint possessory right exercised by the plaintiff and defendant?

(iii) Are not the appellants entitled to get a preliminary decree for partition?

5. The learned counsel for the supplemental plaintiffs/appellants would submit that the courts below did not advert to the findings and observations made by this Court in Extr.A3 judgment which was the common judgment passed in the three suits which were tried earlier. Since the dismissal of the suit, O.S. 339/1977 was not challenged at all by the plaintiff therein who is the first defendant in the pr