Abandonment of part of claim under Order 23 Rule 1 does not require formal application; mere notification suffices for partition claims.

JUDGMENT :

R. VIJAYAKUMAR, J.

1. The 9^th defendant in a suit for partition has filed the present second appeal challenging the concurrent findings of the trial Court as well as the appellate Court.

(A)Factual Matrix:

2.One Mr.M.Pushparaj as plaintiff has filed the said suit for partition claiming 1/12^th share in the suit schedule property. As per the plaint averments, the suit schedule properties were the absolute properties of the plaintiff's father namely Mariapushpam Nadar who passed away in the year 1970. He had left behind the plaintiff, the first defendant (wife of the deceased) and the defendants 2 to 8 who are the other legal heirs. After the death of Pushpam Nadar, the plaintiff and the defendants 1 to 8 became the co-owners of the plaint schedule Item Nos. 1 to 5 as per Indian Succession Act. The mother namely the first defendant had inherited 1/3^rd share and the siblings would be entitled to 1/12^th share each. Since the joint possession causes inconvenience and the defendants 3 to 8 are not coming forward to enter into a partition, the present suit for partition is being filed.

3.Further contended in the plaint that the defendants 1 and 2 have executed a void sale in favour of the defendants 9 to 15. The plaintiff is not a party to the said sale deed and therefore, the same is not binding upon him. Hence, he has prayed for partition of his 1/12^th share in the plaint schedule properties and for seeking separate possession.

4.Except defendants 3 to 7, 9 and 15, all the other defendants were set exparte. The defendants 3 to 7 have filed a written statement concurring with the plaint averments and submitted that they are ready to pay Court fee for their 1/12^th share.

5.The defendants 9 and 15 have filed a written statement contending that after the death of Mariapushpam Nadar, the first defendant had executed a settlement deed in favour of the second defendant on 30.06.1986 with regard to Item Nos.1 and 2 of the suit schedule properties. Thereafter, the 2^nd defendant has executed a sale deed in favour of the 9^th defendant on 30.01.1995. Since a survey number was wrongfully mentioned, a rectification deed was also executed by the 2^nd defendant. Thereafter, the 9^th defendant has executed a sale deed in favour of the defendants 10 to 14. In such circumstances, the defendants have prescribed title by adverse possession.

6.It was further contended by the 9^th defendant and the defendants 10 to 15 that they are in possession of the suit schedule properties. Therefore, the contention of the plaintiff that he is in joint possession is not legally sustainable. The properties were allotted to the share of the first defendant and she had executed a registered settlement deed in favour of her son and therefore, the suit for partition is not maintainable.

7.After examination of DW2, a memo was filed on the side of the plaintiff before the Court on 19.06.2001. It is submitted in the memo that as far as Item Nos. 1 and 2 are concerned, a settlement has been reached between the plaintiff and the defendants 4, 6, 7 and 9 outside the Court and therefore, the suit for partition against Item Nos.1 and 2 is not pressed. The memo is signed by the plaintiff as well as his counsel. It has also been signed by the counsels appearing for the defendants 4, 6, 7 and 9. The learned Trial Court has made an endorsement “Recorded” on 19.06.2001.

8.The trial Court has proceeded to consider the entire issue on merits, without taking into consideration the memo filed on behalf of the plaintiff on 19.06.2001 and had passed a preliminary decree granting 1/12^th share to the plaintiff with regard to all the properties. Challenging the same, the defendants 9