The court affirmed the binding nature of the 1995 partition deed among defendants while confirming the plaintiff's rights under a prior final decree.

JUDGMENT

This appeal arises out of the dismissal of an application for condonation of delay of 380 days in filing an appeal against a preliminary decree for partition. Normally, on finding that the delay caused in filing the first appeal has been properly explained, this Court should send the matter back to the first appellate court for a reconsideration. But, in the light of certain compelling facts disclosed before this Court in this appeal and also in the light of certain indisputed facts which touch upon the right of the plaintiff to maintain a suit for partition successfully, this Court is inclined to send the matter back to the trial court for a fresh consideration inasmuch as the dispute now revolves around the defendants among themselves and that the plaintiff has nothing to do with inter se dispute.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The appellant is the 4^th defendant in a suit (O.S. No.164/2008 on the files of Munsiff’s Court, Vatakara) for partition instituted by the 1^st respondent/plainti the plaint schedule property is set apart to the share of one Narayani Amma, her children, i.e. defendants 1 to 5, their deceased sister Ammukkutty Amma, her daughter 6^th defendant and his deceased sister Radha, as a group as per a partition deed dated 06.08.1954. According to the 1^st respondent/plaintiff, Narayani Amma died after 1956 and her rights devolved upon defendants 1 to 5 and their sister Ammukkutty Amma. The daughter of Ammukkutty Amma, namely Radha, also died and she had no husband and children and her right also devolved upon Ammukkutty Amma. As such, defendants 1 to 5 and Ammukkutty Amma obtained 6/54 share of Narayani Amma and Ammukkutty Amma also obtained 6/54 share of Radha. The remaining 42/54 share were jointly possessed by thavazhi members. The plaintiff and defendants 7 to 18 are the members born in the thavazhi thereafter. The plaintiff and defendants 6 to 9 are the children of Ammukkutty Amma. The defendants 10 and 11 are the children of the 6^th defendant, defendants 12 to 15 are the children of the 3^rd defendant and defendants 16 to 18 are the children of the 5^th defendant. According to the plaintiff, defendants 1 to 5 have 62/1080 shares each in the plaint schedule property and the plaintiff and defendants 6 to 9 together have 392 shares out of 1080 shares. Each of the remaining defendants has 42/1080 shares. Thus the plaintiff is entitled to 1/5th of 392/1080 shares.

2.2. Defendants 3, 5, 6, 8 and 10 to 18 stood exparte. Defendants 1, 2, 4 and 9 filed separate written statements. Though the right of the plaintiff to seek partition over the plaint schedule property was not seriously disputed, the plea that there was a sub partition among the defendants on 30.05.1995 as per registered Partition Deed No.1227/1995 of SRO, Vatakara was admitted. Pertinently, the said deed never saw the light of the day. The trial court was thus constrained to accept the plea of the plaintiff and pass the preliminary decree for partition. So much so the other defendants who were members of the partition deed dated 30.05.1995 resiled from the understanding and then went along with the plaintiff, presumably because they got a better bargaining in the preliminary decree so passed. 2.3. Later, the plaintiff appears to have filed an application seeking passing of final decree as FDIA No.1325/2010 on 03.09.2010. At that point of time, the 4^th defendant/appellant herein also participated in the proceedings. At any rate, a final decree was passed on 31.07.2012 allotting Plot No.E in Ext.C2 to the plaintiff. Other sharers