The court held that a partition suit is not maintainable without proper evidence of ownership, especially when the property has been sold in execution proceedings.

Judgment

(Dated: 12^th December, 2025)

This original petition is filed by the petitioner/defendant to issue a writ of certiorari or other appropriate writ or direction for setting aside Ext.P13 order dated 22.03.2025, in I.A. No.12 of 2024 in O.S.No.142 of 2024 on the file of the Principal Sub Court, North Paravur, and allow the petition for rejection of the plaint.

2. Heard the arguments of the learned counsel for the petitioner and counsel for the respondent.

3. The case of the petitioners is that they are the 10^th and 11^th defendants in the suit filed by the respondent/ plaintiff, for partition of the plaint schedule property by means and bounds into five equal shares, allot one share to the plaintiff, and give separate possession to the plaintiff and other various reliefs. The defendant appeared and filed a written statement and also filed an Interlocutory Application as I.A. No. 12 of 2024 under Order VII Rule 11 of CPC for rejection of the plaint.

4. The petitioner/defendants herein contended that the plaintiffs is the brother-in-law of the defendant No.10. It is contended that the said property has been purchased by the father of the 3^rd defendant, namely late K.T. Baby, vide sale deed No.4473/1987 of SRO, Aluva, on 23.09.1987. The market value of the property is more than 4 Crores, consisting of land along with a 3-storied building. The petitioners obtained joint ownership over the plaint scheduled property as per sale deed No.3403/1/19 of Aluva SRO. The 10^th defendant is the wife of the 2^nd defendant.

5. The 3^rd defendant, who is the son of K.T. Baby, survived the property, and the said property was attached in execution proceedings, and one Monamma and her daughters purchased the plaint scheduled property through court auction in the execution proceedings. The purchase certificate was also issued, and the property was mutated in their name; thereby, the defendants lost their property in the execution proceedings – E.P. No.54 of 2004. Therefore, without producing any title documents by the plaintiff, claiming rights over the property is without any basis, and the suit is not allowable.

6. The defendants have filed a counter, contending that the first defendant and second defendant are the two brothers born to their father, along with the first defendant, and the father of the 3^rd defendant, K.T. Baby. K.T. Raju/husband of the 4^th defendant, who is the father of the 5^th and 6^th defendants, was the brother sharing common food and worship. The property was purchased in the name of the eldest brother, K.T. Baby, out of the family fund. The property was purchased by spending money by all the brothers. They constructed the shopping complex, equally contributing to the documents. K.T. Baby died along with his wife in an accident, and the plaintiff and defendants are entitled to a 1/5^th share each. The plaintiff has demanded partition from defendant No.1 to 6, but they have refused; therefore, the suit was filed. The plaintiff has paid the proper requisite court fee; therefore, the suit is maintainable. Hence, prayed for dismissal of the application.

7. After hearing the arguments, the trial Court, the application filed by the defendants No.10 and 11 under Order VII Rule 11 of CPC has been dismissed; hence, the defendants No.10 and 11 are before this Court.

8. Learned counsel for the petitioner vehemently contended that the plaintiff had not produced any sale deeds for having purchased the property. Absolutely no document to show that it is a joint family proper