The main legal point established in the judgment is that the suit was maintainable against defendants 8 and 9, and the finding challenged in the appeal was not amenable to appeal under Section 96 or Section 104 of the C.P.C.

JUDGMENT :

This R.S.A. is directed against the judgment and decree in A.S.No.03/2019 dated 9.2.2021 on the file of the Additional District Court-I, Kalpetta, Wayanad (hereinafter referred to as 'the first appellate court') pursuant to the order dated 23.1.2019 in O.S.No.25/2016 on the file of the Sub Court, Sulthanbathery (hereinafter referred to as 'the trial court').

2. The appellants are supplemental defendants 8 and 9 in a suit for partition of 5 items of properties on the basis that they belonged to one Kunhan and was inherited by his children, the plaintiffs and defendants respectively. The plaintiffs, the defendants 1 to 4 and deceased Sukumaran are the children of late Kunhan born in his wedlock with Kalyani. The defendants 6 and 7 are the children born to late Sukumaran and defendant No.5 is the widow of late Sukumaran. The defendants 1 and 5 to 7 contended that Kunhan had another wife, namely, Gouri and had two children. Without admitting the relationship, by way of abundant caution, the plaintiff impleaded supplemental defendant Nos.8 and 9 to resolve the dispute finally. Upon impleadment, the defendants 8 and 9 contended that Kunhan had executed a Will No.56/1994 of the SRO, Panamaram bequeathing item Nos.1, 2, 3 and 5 in the plaint B schedule to additional defendants 8 and 9. The additional defendants 8 and 9 contended before the trial court that since the plaintiffs are not admitting them as co-owners, a suit for partition against them is not maintainable. The trial court framed an issue regarding the maintainability of the suit. As per order dated 23.1.2019, the trial court held that the suit is maintainable even against the defendants 8 and 9. The said order is challenged before the first appellate court. By the judgment dated 9.2.2021, the first appellate court held that an appeal is not maintainable from a finding of the trial court. Accordingly, the appeal was dismissed by the first appellate court. Hence, this R.S.A. has been preferred. For the sake of clarity, the parties are hereinafter referred to as the plaintiffs and defendants according to their status in the trial court unless otherwise stated.

3. Based on the contention raised by the defendants, the trial court framed the following issues:-

i) Is not the suit maintainable on the ground of objection raised by supplemental defendant Nos.8 and 9.

(ii) Reliefs and costs.

4. Sri.B.G.Bhaskar, the learned counsel for the appellants would contend that no suit for partition will lie against the defendants 8 and 9. According to the learned counsel, the defendants 8 and 9 have been in possession of plaint schedule item Nos.1 to 3 and 5 ever since the death of Kunhan as the legatees under the Will. Elaborating on the submission, the learned counsel for the appellants contends that in case the plaintiffs desire partition of plaint item Nos.1 to 3 and 5 based on the alleged claim of inheritance under Kunhan, their remedy is to get recovery of those items from the possession of the defendants 8 and 9 before seeking suit for partition. It is further contended that the trial court committed a patent illegality in giving an option to the plaintiffs to amend the plaint by seeking the relief of recovery of possession from the defendants 8 and 9. The learned counsel for the appellants further contends that the court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties.

5. The learned counsel for the appellants further contended that an order affecting the rights and liabilities of the defendants 8 and 9 is perfectly maintainable before the first appellate court and an appeal can be entertained without a certified copy of the decree treating the impugned order as a decree as defined under Section 2(2) of the C.P.C. The learned counsel for the appellants relied on the following decisions in support of his contentions on the merits:-

1. Kasi Alias Alagappa Chettiar