A party must be allowed an opportunity to provide necessary evidence for property identification in partition suits.

JUDGMENT

This appeal arises out of the judgment and decree in OS No. 5 of

2007 of the Munsiff Court, Perumbavoor as confirmed by the Sub Court, Perumbavoor in AS No. 243 of 2009.

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

2.1. The appellant/plaintiff in a suit for partition has been non-

suited concurrently by the Courts below on the sole ground that the appellant has not taken effective steps to identify the plaint schedule property. The facts are not seriously disputed. By Ext. A3 partition deed executed among the parties, a total of 1.50 Acres of property was partitioned. The extent of property partitioned in the said deed is 1.44 acres. Thus, remaining 6 cents of property is available for partition. The plaintiff thus sought the decree for partition of the aforesaid extent. The Commissioner appointed by the Trial Court on 22.08.2008 filed an interim report stating that he could not identify and demarcate the 6 cents of property in Sy. No. 410/2/1 for want of proper survey plan. The Trial Court took exceptions to the act of the plaintiff in not providing the Commissioner with the survey plan and accordingly dismissed the suit finding that the property has not been identified. Aggrieved, the appellant preferred A.S. No. 243 of 2009 before the Sub Court, Perumbavoor. The First Appellate Court found that the plaintiff could not prove the availability of 6 cents of property which was left unpartitioned and, therefore, did not find that it was expedient to grant an opportunity to the plaintiff to implead the sister also in the suit. Accordingly, the appeal was dismissed. Aggrieved, the present appeal.

3. On 24.11.2025, this Court admitted the appeal on the following substantial questions of law;

Whether the courts below were “(i)

justified in dismissing the suit for partition then admittedly 6 cents of property was found to be left out after Exts. A1 and A2 partition deeds were executed.

(ii) Whether the courts below ought to have relegated the parties for identification of the property at the final decree stage.”

4. Heard Sri. Paul K. Varghese, the learned Counsel for the appellant and Sri. G. Rajagopal, the learned Counsel appearing for the 1^st respondent.

5. The learned Counsel for the appellant pointed out that the act of the plaintiff in not making available the copy of the survey plan is not a ground to dismiss the suit. The inability of the Commissioner to identify the property should not have been put against the appellant inasmuch as the Trial Court should have directed the Commissioner to identify or demarcate the property with the help of the Surveyor and the plan. In not doing so, the Trial Court has admitted itself powers and committed serious irregularities. In support of his contentions, relied on the decision of this Court in Vavachan v. Sasi [2015 (5) KHC 711]

6. Per contra, the learned Counsel appearing for the 1^st respondent supported the findings rendered by the Courts below and contended that both the Courts below have concurrently found that the identity of the property has not been established. According to the learned Counsel for the 1^st respondent, when Ext. A3 partition deed was executed, certain portions of the property were left out for the carving out of a pathway and if the extent of the pathway left out for the purpose of usage as a pathway is taken into consideration, it will come to 6 cents. Since both parties derived respective interest over the property by virtue of Ext. A3, none of them have any right to seek partition of the remaining extent of 6 cents. That apart, it is pointed out that the non-impleadment of the sister of the plai