IMPORTANT POINT
The court affirmed the plaintiffs' legal heir status and ruled that the earlier suit's dismissal did not bar the current partition action.

JUDGMENT :

Sathish Ninan, J.

The preliminary decree in a suit for partition is under challenge by the defendant.

2. Kunjayyan, the predecessor of the plaintiffs, and the defendant were brothers. The plaint schedule property belonged jointly to Kunjayyan and the defendant as 'Kudikidappu' obtained from the landlord. The plaintiffs seek for partition and separate possession of one half share of their predecessor Kunjayyan.

3. The defendant denied the status of the plaintiffs as the legal heirs of Kunjayyan. It was claimed that the suit is barred by res judicata by virtue of the dismissal of an earlier suit filed by Kunjayyan for partition of the property. It was also contended that Kunjayyan had relinquished his rights over the property for consideration.

4. The trial court negatived the defendant's plea and decreed the suit.

5. I have heard the learned counsel on either side.

6. The points that arise for determination are;

i) Is the finding of the trial court that the plaintiffs are the legal heirs of late Kunjayyan, sustainable on the evidence?

ii) Is the defendant's plea that Kunjayyan had relinquished his rights over the property on receipt of money from the defendant, proved by evidence?

iii) Is the suit barred by res judicata?

7. Though the defendant contended that the plaintiffs are not the legal heirs of Kunjayyan, as DW1, even in the chief examination he would depose, . On such admission, no further evidence is necessary to find that the plaintiffs are the legal heirs of Kunjayyan, Therefore, the challenge was rightly declined by the trial court.

8. Though the defendant would claim that Kunjayyan had relinquished/released his rights over the property by receiving amounts, no evidence in the said regard is produced. Moreover, as DW1, he would admit that Kunjayyan has one half right over the property. His deposition reads thus;

Therefore, the said contention of the defendant also fails.

9. Kunjayyan had filed a suit as O.S.No.621 of 1992 against the defendant, seeking partition of the property. The suit was dismissed for default. Pending the restoration application, Kunjayyan died. The legal heirs sought to get themselves impleaded. However, the application was dismissed on the ground of delay. Referring to the same it was contended that the present suit is barred by res judicata. Evidently, the plea cannot be sustained. To constitute res judicata, there has been no adjudication in the earlier proceedings. The suit being one for partition, so long as the co-ownership continues, there is no bar to maintain the present suit. Therefore, the trial court rightly held that the suit is maintainable.

10. The decree and judgment of the trial court warrants no interference.

The appeal lacks merit and is dismissed. No costs.