JUDGMENT

Challenging a preliminary decree for partition, the

2nd defendant is in appeal.

2. The plaint schedule properties belonged jointly to five brothers namely, Appukutty, Joykutty, Janardhanan, Sivadasan, and Sidharthan as per the final decree in O.S.No.177 of 1975 of the Sub Court, Kozhikode. That was a suit for partition. The plaintiff herein is the 14th defendant therein. There was a charge subsisting in respect of item No.1 property sought to be partitioned. The same was taken delivery of by the 2nd defendant on behalf of all the co-owners through E.P.No.156 of 2008. Plaintiffs 1 to 5 are the legal heirs of Joykutty and plaintiffs 6 and 7 are the legal heirs of Sidharthan. Defendants 1 to 5 are the legal heirs of Appukutty. The plaintiffs seek for partition and separate possession of their shares.

3. According to the 2nd defendant, who is the contesting defendant, the charge over item No.1 property was got released by him and he took deliver of the said item of property. Therefore, the plaintiffs are not entitled to seek partition of the said item.

4. The trial court declined the contention of the defendant and granted a decree for partition of the plaint properties.

5. I have