A suit for partition is not maintainable without a prayer for recovery of possession, if the property is in the exclusive possession of a third party who has obtained a decree declaring their title over the property.

1.This Second Appeal has been preferred under Section 100 r/w Order XLI of the Code of Civil Procedure by the 5th respondent in A.S.39/2002 on the file of the Subordinate Judge, Thiruvalla, reversing the judgment and decree of the Munsiff Court, Thiruvalla in O.S.104/1995 and decreeing the suit.

2.For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.

3.Plaintiffs 1 to 3 filed the suit for partition against defendants 1 to 4 on the ground that the plaint schedule property consisting of 9.375 cents of property and a building therein belonged to their father Thomas Thomas who died intestate in the year 1974 leaving them as his legal heirs. Subsequently, additional defendant No.5 was impleaded in the suit as it was revealed that a document in respect of the plaint schedule property was executed in his favour. The trial court found that the additional 5th defendant is in exclusive possession and enjoyment of the plaint schedule property and as such, without a prayer for setting aside the document in favour of the 5th defendant, the suit for partition is not maintainable and accordingly the suit was dismissed.

4.In Appeal, the 1st Appellate Court reversed the finding of the trial Court and decreed the suit and a preliminary decree for partition was passed. Dissatisfied with the above preliminary decree passed by the 1st Appellate Court, the additional 5th defendant preferred this Second Appeal raising various contentions.

5.At the time of admission, this Court formulated the following substantial question of law for consideration :

“Were the courts below justified in passing a preliminary decree for partition, considering the peculiar circumstances of this case without a prayer for recovery of possession or payment of necessary court fee for such a relief ?”

6.During the pendency of the First Appeal, the 1st appellant died and additional appellants 4 to 6 were impleaded. Additional respondents 6 to 8 were also impleaded. During the pendency of the Second Appeal, additional respondents 1, 2, 4 and 11 died and respondents 5 and 6 were recorded as the legal representatives of deceased 4th respondent. Though service is complete, none of the respondents turned up at the time of hearing.

7.Heard the learned counsel for the additional 5th defendant/appellant in detail, on the above substantial question of law.

8.The plaintiffs filed this suit for partition claiming that their father Thomas Thomas is the owner of the plaint schedule property consisting of 9.375 cents of landed property and a building therein. According to the plaintiffs, their father died intestate and plaintiffs 1 to 3 and defendants 1 to 4 being his children are entitled to inherit the plaint schedule property in equal shares. The trial court found that the plaint schedule property is in the exclusive possession and enjoyment of additional 5th defendant. The trial court also found that in respect of the plaint schedule property two registered sale deeds namely, Exts.B18 and B19, were executed and without a prayer for setting aside those documents and a prayer for recovery of possession, the suit for partition alone is not maintainable. The 1st Appellate Court found that though the 5th defendant is in possession of the plaint schedule property, he cannot claim title over the said property by adverse possession and limitation as he is a co-owner along with other defendants and proceeded to decree the suit.

9.The learned counsel for the additional 5th defendant/appellant relying upon the decision of a Division Bench of this Court in Thamarasseri Roman Catholic Diocess v. Umadevi Nambiar, 2017 (1) KLT 71, would argue that in the absence of a prayer for recovery of possession of the property, the 1st Appellate court was not justified in reversing the finding of the trial court.

10.In the plaint, the plaintiffs claimed that they are in joint possession and enjoyment of the plaint schedule property along with the defenda