Important points:
A final decree for partition is a decree for recovery of possession for the purpose of Order XXI Rule 97 of the Code. It is also a fundamental aspect that "any person" referred to in Order XXI Rule 97 of the Code includes persons other than the judgment debtor or those who claim derivative title from the judgment debtor -Unnikrishnan vs. Kunhibeevi, 2011 (1) KLT 508. The appellant has therefore an independent right of resistance and his propounded rights have to be determined in accordance with law.

A. HARIPRASAD, J.

1. Disputes in these cases revolve around the right of a party to resist execution of the final decree passed in a partition suit by raising claims under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (in short “the Code”) when he was found, after a fulfledged trial, to be an unnecessary party to the suit. He would, therefore, contend that he is not bound by the decree.

2. Learned single Judge admitted Ex. S.A. No. 14 of 2013 by raising two substantial questions of law. Since the substantial legal questions put forth in Ex. S.A. No. 13 of 2013 are identical, it is also admitted and both the appeals are heard together.

3. After perusing the entire records and on hearing the learned counsel on both sides, the substantial questions of law re-framed are as follows:

(i) When the appellant was found to be an unnecessary party to a suit for partition and he had set up a title different from the one mentioned in the pleadings of the contesting parties, are the courts below right in holding that the appellant is bound by the decree and that he cannot maintain an application under Order XXI Rule 97 of the Code?

(ii) Are the courts below justified in declining the request made by the appellant to have the properties identified, especially when he had taken steps to issue a commission for local inspection?

4. Heard the learned counsel for the appellant and the contesting respondents.

5. Admitted facts are thus:

Appellant is the 9th additional defendant in O.S. No. 20 of 2004 before the Court of Munsiff, Vadakara. The suit is one for partition of the plaint schedule property by metes and bounds. In Ex. S.A. No. 13 of 2013, the plaintiff, Moosa, was arrayed as the 1st respondent and in Ex. S.A. No. 14 of 2013, he was the 2nd respondent. Pending the appeal, he died and his legal heirs are impleaded. According to the plaint averments, Moosa and the defendants 1 to 8 are co-owners in respect of the plaint properties. He sought partition and separate possession of the properties. All the original defendants admitted partiability of the estate and they also claimed share in the property by remitting the required court fee. As per the contentions raised by the original defendants, the 9th defendant is occupying a kudiyiruppu in the plaint schedule property and therefore he should be made a party to the proceedings. In accordance with that contention, the appellant/9th defendant had been impleaded. Thereafter, he filed a written statement contending that there was no valid reason for impleading him in the suit. It is stated that he could not comprehend any reason for his impleadment. Further, he contended that the plaint schedule property never belonged to the parties to the suit in co-ownership and it is lying in the possession of Labour Contract Society, Ooralunkal. Why the appellant has been depicted as a person holding kudiyiruppu is not clear from the averments in the plaint and written statement. The appellant and his siblings are entitled to a property lying in survey No. 70/68 (resurvey No. 140) of Ponmeri amsom. The plaintiff has no right over the said property. Identity of the plaint schedule property has not been properly revealed and at any rate the plaintiff and other defendants are not entitled to get any portion of the property owned by the 9th defendant and his siblings. He prayed for dismissal of the suit.

6. Parties went for a trial. It is seen from the trial judgment that only one document was produced on the side of the plaintiff to prove his co-ownership right in the property. None of the parties adduced any oral evidence. The suit was decreed by the trial court by passing a preliminary decree, finding that the appellant is an unnecessary party to the proceedings as he has not set up any right in respect of the plaint schedule property. Legally speaking, the appellant's prayer in the written statement to dismiss the suit in its entirety was not allowed; but then, no effective decree was passed agains