JUDGMENT :

A. BADHARUDEEN, J.

1. This regular second appeal has been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC for short’) challenging judgment and decree dated 27.06.2016 in A.S. No. 143/2012 on the files of the District Court, Palakkad, arose out of judgment and decree dated 20.03.2012 in O.S. No. 120/2011 on the files of the Principal Munsiff’s Court, Palakkad. The appellant herein is the 2nd defendant in the above suit and the respondents are the plaintiffs and the first defendant.

2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents.

3. I shall refer the parties in this regular second appeal as ‘plaintiffs’ and ‘defendant No. 1’ and ‘defendant No. 2’ for convenience.

4. In this matter, suit was filed by the plaintiffs seeking partition of the plaint schedule property by metes and bounds on the assertion that plaintiff Nos.1 and 2 and defendant Nos. 1 and 2 are entitled to get 1/4th share each in the plaint schedule property.

5. Defendant No. 2 raised contention before the trial court that she had spent Rs. 1,00,000/- (Rupees one lakh only) for the repair works of the dwelling house and the dwelling house was constructed by her father. Accordingly, defendant No. 2 prayed for allotting the dwelling house in her favour independently.

6. On perusal of the evidence, the trial court granted decree as under:

“In the result, the suit decreed. A preliminary decree for partition is passed as follows:

(a) Plaintiffs 1 and 2, defendants 1 and 2 are declared entitled to 1/4th share each over the plaint schedule property.

(b) The dwelling house in plaint schedule property shall be allowed to the share of the 2nd defendant. But the dwelling house is liable for valuation and distribution among all the co-owners.

(c) Other equities, mesne profits and reservations are ordered to be adjudicated in the final decree proceedings.

(d) The cost of litigation is to be borne from the estate.

(e) Any of the co-owners is entitled to apply for passing final judgment. The allotment to the defendants is subject to payment of court fee.”

7. Although A.S. No. 143/2012 was filed before the District Court, Palakkad, the District Judge, on re-appreciation of evidence, confirmed the finding of the trial court and accordingly, the appeal was dismissed.

8. While admitting this appeal, my learned predecessor, as per order dated 08.03.2017, formulated the following substantial questions of law:

“(i) Whether the courts below are right in relegating the claim of reservation in respect of a dwelling house in the plaint schedule property to be determined in the final decree proceedings?

(ii) Whether the court below erred in not reserving the dwelling house in favour of the appellant in the light of the evidence available in the case?”

9. While arguing the case, the learned counsel for defendant No. 2 submitted that defendant No. 2 is aggrieved in the matter whereby the trial court, after allotting the house in favour of defendant No. 2, held that the dwelling house also is liable for valuation and distribution among all the co-owners. It is submitted by the learned counsel for defendant No. 2 that in the decision in Subhadra Amma vs. Viswanatha Bose Asan, 1971 KHC 368, this Court considered the claim by defendants 43 and 44 in the building, situated in B schedule item No. 1 therein, and held in paragraph No. 11 that, in a suit for partition, equitable considerations could weigh with the court in allotting the building to the member who had put up the building without reckoning the value of the building as a common asset.

10. Therefore, it is argued that in this case, admittedly, the 2nd defendant has been residing in the dwelling house and has been maintaining the same. Therefore, the dwelling house should be allotted in favour of defendant No. 2, without including the same for partition in any manner.

11. Opposing this contention, the learned counsel f