ASHOK MENON, J.

1. The petitioner is the plaintiff in O.S. No. 59/2012 on the files of the Munsiff-Magistrate Court, Ponnani, while the respondent herein is the 3rd defendant in that suit. The suit is one for partition. Some of the defendants raised a plea of non-joinder and wanted certain additional defendants to be impleaded. They have also raised a counter claim for addition of a property, which was not included in the plaint schedule, but were partible among the plaintiff and the defendants, as also among the parties sought to be impleaded. I.A. No. 1510/2015 was filed by the respondent herein for impleadment. The I.A. was dismissed by the trial Court at the first instance. That order was challenged before this Court in O.P.(C) No.2499/2015 and vide Ext.P6 judgment the defendants were directed to file an application for framing additional issue regarding non-joinder, and the trial Court was directed to dispose of the I.A. afresh. In accordance with Ext.P6, the contesting defendants filed I.A.No.87/2016 at Ext.P7 raising an issue regarding the non-joinder of parties and vide Ext.P8 the application for joinder of parties was allowed. It is that order of the learned Munsiff-Magistrate that stands challenged by the plaintiff in this Original Petition.

2. The plaint schedule property belonged to the father of the plaintiff and the defendants, late Karappayi, who had two wives and twelve children born in the wedlock. The first wife of Karappayi is no more. The second wife survived him and inherited the property along with the children in both the marriages. Out of the legal heirs, seven children released their partible interest in the property to the plaintiff by executing a release deed at Ext.P3. Those who have released their right in favour of the plaintiff are not impleaded in the suit.

3. The defendants 1, 3 and 5 filed Ext.P2 written statement together with a counter-claim regarding an item of property, which also belonged to Karappayi, but was not included in the partition suit. The property included in the counter-claim belongs to the legal heirs, including those who have released their right in favour of the plaintiff vide Ext.P3 deed. Hence they are sought to be impleaded, for they too are entitled to a share in the property.

4. The plaintiff contended in Ext.P4 written statement to the counter-claim that no counter-claim can be raised in a partition suit. Consequent to that, Ext.P5 I.A.No.1510/2015 was filed by the defendants. In support of the objections raised by the petitioner-plaintiff, he has obtained and submitted Ext.P9 affidavit of those who had executed Ext.P3 release deed, in which, they have explicitly admitted that they are not interested in the suit and that they have relinquished whatever right they had in the plaint schedule property and executed Ext.P3 in favour of the plaintiff.

5. The learned Counsel for the petitioner would contend that in a suit for partition, the defendants cannot seek partition of additional properties, because the plaintiff is the master of the suit and it is for him to decide what items of properties are to be included for partition in his plaint. All that the defendants can do is to raise a challenge that the suit is bad for partial partition, but it would not enable them to seek inclusion of additional items unless, the plaintiff concedes to do so. The learned Counsel relies on the decision reported in Doraswamy v. Sivasankaran, 2014 (2) KHC 420 in support of the proposition that in a suit for partition, neither a counter-claim could be raised, nor impleading of additional defendants is possible. Paragraph 12 of the decision is extracted hereunder:

“12. The whole approach made by learned Sub Judge to the issues involved for adjudication and, particularly, over the contention raised by additional fourth defendant demanding inclusion of all items covered by Ext.A1 in the suit for partition instituted by another was erroneous and patently unsustainable. In a suit for partiti