This appeal is at the instance of the 2nd plaintiff in O.S.No.56 of 2006 before the Court of Munsiff-Magistrate, Perinthalmanna. The suit is one for partition of the property scheduled to the plaint. 1st defendant is the brother of the plaintiffs. Defendants 2 and 3 are purchasers of the property from the 1st plaintiff and 1st defendant.

2. Shorn off unnecessary details, the relevant pleadings are as follows: Properties originally belonged to the father of plaintiffs and 1st defendant, viz., Kunhiraman. Kunhiraman had two wives. After the death of Kunhiraman, plaintiffs and 1st defendant partitioned the properties as per Ext.B1 partition deed of the year 1982. In fact, deceased Kunhiraman had another daughter through his first wife by name Kuttiy Ammu @ Notti. Since she was not made a party to Ext.B1 partition deed, she filed O.S.No.2 of 1983 seeking partition of the assets left behind by deceased Kunhiraman. That suit was decreed in her favour finding that she was entitled to get 1/4th right over the properties. Since the plaintiffs and 1st defendant, who were defendants in that suit, did not pay court fee for separate allotment, their shares were kept in common finding that all the three were together entitled to 3/4 shares. Each of the parties were found to have been entitled to 1/4th share in the assets of deceased Kunhiraman. Subsequently Kuttiy Ammu @ Notti pursuant to the final decree in the suit, filed an execution petition and got delivery of the property. It is therefore contended by the plaintiffs that they are entitled to get a partition of the property outstanding in the possession of the co-owners after giving a due share to Kuttiy Ammu @ Notti.

3. 1st defendant resisted the suit by contending that the parties have taken possession of the property in accordance with Ext.B1 partition deed and both the 1st plaintiff and 1st defendant had assigned portions in tune with Ext.B1. It is also his contention that the allotment to Notti was effected by taking a portion of the property set apart to the 1st defendant as per Ext.B1 partition deed.

4. It is interesting to note that the 2nd plaintiff/appellant herself filed O.S.No.16 of 2009 seeking a permanent prohibitory injunction against the 1st defendant alleging that he was attempting to trespass upon the property allotted to her as per Ext.B1 partition deed. Curious fact to be noted is that this suit was filed after the dismissal of the present suit. However, the fact remains that O.S.No.16 of 2009 was not adjudicated upon merits as it was dismissed when the counsel reported no instruction. Therefore filing a second suit may not have any impact on the present suit.

5. Trial court dismissed the suit finding that the plaintiffs have no consistent case. According to the trial court, even after the decree in O.S.No.2 of 1983 the parties kept possession of the property in accordance with Ext.B1 partition deed. Some unconvincing reasons have been stated by the courts below for finding that the present appellant has no right to seek partition of the property over and again.

6. Lower appellate court in an appeal filed by the present appellant and the 1st plaintiff also found that there are inconsistencies in the case set up by the plaintiffs. In paragraph 10 of the lower appellate court’s judgment, the court below noted that applications were incessantly filed by the plaintiffs to amend the plaint even at the stage of appeal. It was taken as an indication to find that the plaintiffs have no consistent case. Following observations are also made regarding the merit of the appellant’s case:

“ ............ The evidence of the first plaintiff as PW1 shows that the parties had acted upon Ext.B1 partition deed and based on which they had also sold out some properties. But they came up with the suit as if such a partition deed is not valid. It is to be noted that the partition deed was executed even before the decree in O.S.No.2/83. But even after the decree and also the delivery of