Point of Law: Suit for partition - what is the actual extend of finding is very much relevant for a proper adjudication property available for partition.

JUDGMENT :

The judgment and decree dated 30.03.2009 in O.S. No.316 of 2006 of Additional Subordinate Judge's Court, Palakkad (for short, 'the trial court') is under challenge in the appeal on hand. The appellant is the defendant in the suit and respondents are plaintiffs therein. The suit was for partition.

2. The suit was tried by the trial court and a preliminary decree for partition was passed on the following terms :

“(a) The plaint schedule properties, excluding the 40 cents of land shown in the schedule to the written statement, shall be divided into three equal shares and two such shares be allotted to the plaintiffs together (one such share each) and one such share to the defendant.

(b) The plaintiffs are entitled to get 2/3 share in the profits derived from the partible properties from the defendant from the date of suit till the date of actual delivery of the properties to the plaintiffs. The quantum of share of profits shall be decided in final decree proceedings.

(c) The plaintiffs are entitled to get costs of the suit and costs shall come out of the estate.

(d) The parties are at liberty to file petition for passing final decree for partition. The defendant shall remit court fee for getting his share allotted in final decree proceedings.

(e) A copy of the schedule to the written statement shall be attached to the decree in addition to the plaint schedule.

(f) The suit was adjourned sine die.”

3. The appeal on hand is filed by the defendant through Adv. Easwaran challenging the preliminary decree on twin grounds as stated hereinbelow:

(a) The suit is not maintainable as it is barred by limitation.

(b) Without adverting to a contention raised in the written statement that certain items of properties included in the schedule appended to the plaint were already sold to one Mr. Azhagappan, Chandran and others, the preliminary decree was passed holding that the entire extent of plaint schedule property is partible.

4. The learned counsel for the appellant has filed I.A. No.3396 of 2009 under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the C.P.C') in the appeal memorandum.

5. Alongwith the above interlocutory application, documents were also produced and sought to be marked as Annexures A1 & A2 in evidence additionally. It was averred that the 1st respondent in the appeal had sold certain extent of properties given to her by Sri. Kochan, to one Sri. Chandran as per document dated 20.12.1974, photocopy of which is produced alongwith the petition as Annexure A1, and 23 1/2 cents out of the properties scheduled in the plaint was assigned by Sri. Kochan to one Sri. Azhagappan as per document dated 13.07.1982, photocopy of which is produced as Annexure A2 and that on the same day, certain extent of property was also sold by his father to him.

6. According to the learned counsel for the appellant, though those aspects were suppressed by plaintiffs before the trial Court by omitting to plead in the plaint, the court was made to apprise of those by the appellant by raising specific contentions in the written statement filed. Though the above contended factums were material and relevant for adjudication of the issues involved and grant of a decree for partition as applied for, the trial court failed to advert to those while passing the impugned preliminary decree. The learned counsel has also taken a contention that Annexures A1 and A2 were not available in his custody at the relevant time but could be traced out and produce, only when the trial court was in the process of passing a preliminary decree. According to him those documents being relevant and necessary to have a just and proper adjudication in the case on hand, he has applied for receiving those in evidence additionally.

7. The contention raised secondly was that the suit being filed after the statutorily prescribed time is barred by