The Ext.A4 compromise decree confirmed the preliminary decree passed in O.S.No.1532 of 1992, and no final decree was required to effectuate the compromise. Additionally, the denial of relief in the counter claim remained unchallenged, leading to the dismissal of the appeal.

A.Hariprasad, J.

Defendant in a suit for partition is the appellant. He is aggrieved by the judgment and decree passed by the trial court, rejecting his contention that the subject matter of the suit is not a co-ownership property of the plaintiff and the defendant, but it is a property belonging to a partnership firm, constituted by the parties to the suit. Appellant therefore contended that a suit for partition is incompetent.

2. We heard the learned counsel on both sides. We carefully perused the lower court records.

3. Facts relevant for disposal of the appeal, stated shortly, are as follows: The appellant and respondent are brothers. Two others by names Varghese and Babu, are their siblings. Plaint schedule property was acquired by all the four brothers in the year 1973 as per Ext.A1 registered sale deed. A cinema theater by name 'Thavus Theater' was established in the property under a partnership by all the four co-owners. While so, a suit for dissolution of partnership and rendition of accounts was filed by the appellant and one of his brothers before the Sub Court, Thrissur as O.S.No.1532 of 1992. The suit was decreed by the trial court. The decree and judgment had been challenged in A.S.No.24 of 1999 before the District Court, Thrissur. That appeal was dismissed confirming the decree. Against the said appellate decree, a second appeal was filed before this Court. Pending the appeal, the parties settled their disputes amicably. Pursuant to the settlement, appellant's brother Babu assigned his rights over the plaint schedule property to the respondent through Ext.A2 document. Varghese assigned his rights over the plaint schedule property as per Ext.A3 document in favour of the appellant. A compromise under Order XXIII Rule 3 of the Code of Civil Procedure (in short, “CPC”) was filed before this Court. In accordance with the compromise, this Court, as per Ext.A4 judgment, disposed of the second appeal. The compromise arrived at between the parties has been made a part of the decree in the second appeal.

4. The respondent/plaintiff contended that after the compromise, the property became a co-ownership property with half right devolved on the appellant and the remaining half on the respondent. Respondent wanted division of the property by metes and bounds for which the appellant was not agreeable. Hence he approached the trial court with the suit for partition.

5. Appellant/defendant opposed the suit. Virtually, derivation of title over the property is admitted. Appellant is one of the plaintiffs in O.S.No.1532 of 1992, a suit for dissolution of partnership and rendition of accounts. According to the appellant, deceased Thavu's children started the theater in the property to perpetuate their father's memory. So the appellant would contend that the respondent too had an obligation to continue the business. Accordingly, a decision was taken by four brothers, when the second appeal was pending before this Court, that two brothers would assign their rights over the property in favour of the appellant and the respondent. They, in turn, should continue the business in fond remembrance of their father. It is also contended that an oral partnership agreement was made on 29.10.2009. Only after reaching at a consensus, the compromise was filed before this Court and the second appeal was disposed in terms of the compromise. It is also the contention of the appellant in his written statement that the respondent had removed 350 chairs, 30 fans, 2 projector motors, generator and water tank from the theater. The respondent is liable to return the movable properties to the theater. Hence, a prayer for mandatory injunction is sought by the appellant against the respondent as a counter claim. Gist of the contentions raised by the appellant is that as agreed to between the parties, before the compromise was effected in the first round of litigation, a partnership between the appellant and respondent was formed orally on 29.10.2009 and