JUDGMENT

This original petition is filed challenging Ext. P13 order passed by the Principal Munsiff Court–I, Kozhikode, by which an application filed by the petitioners for impleading them as supplementary defendants 11 to 1, was dismissed.

2. The petitioners claimed that they are the legal heirs of deceased Balan Nair and Raghavan Nair, who are the owners of plaint item Nos. 1 and 2 properties. The trial court dismissed the application holding that there were no materials to show that the petitioners had any right over the properties which are the subject matter of the partition. The court further observed that, as Ext. A1 Registered Lease Deed was relied on for passing the preliminary decree, in the absence of any document evidencing surrender of the leasehold rights, the petitioners could not claim any right over the plaint schedule property.

3. The grievance of the petitioners is that though they had produced a photocopy of Partition Deed No. 47/1985 of SRO, Changanacherry, as well as land tax receipts showing payment of land tax during 2004 to 2010, the court did not consider them while disposing of the matter.

4. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the 10^th respondent.

5. Relying on the judgment of this Court dated

6.1.2017 in O.P.(C)No.249/2014, the learned counsel for the petitioners submitted that the proper course which ought to have been adopted by the trial court is to permit the petitioners to reopen the suit as well as the final decree proceedings by impleading them as additional defendants. In paragraph 4 of the said judgment, this Court observed as follows:

“4. Since, the issue that arises in this Original Petition relate to the ownership of the property, which the petitioners claim exclusively as theirs and which the plaintiffs and defendants claim, on the other hand, to be available for partition among them, it will have to be adjudicated by the court before passing a final decree. The preliminary decree that has been passed by the court below has proceeded on the assumption that the property belongs to the plaintiffs or the defendants in some certain shares. However, the court had never an opportunity to consider the case of the petitioners in this Original Petition that the property does not belong to the plaintiffs or the defendants but to them exclusively. In such view of the matter, the petitioners are necessary parties and they would then, therefore, obtain a right to be added as a party at any stage of the proceedings so as to ensure that a fraudulent final decree is not obtained. I am fortified in my view, but the judgment of this Court in Ammini Ammal v. Krishnan and Others reported in [1978 KLT 80] , wherein this court has already declared the law unambiguously that a person who is a necessary party has a right to be added as a party at any stage of the proceedings. This Court also declared that the proceedings do not come to an end until the final decree is passed. Even though a preliminary decree is a final decision and operate as resjudicata, however, a partition suit in which a preliminary decree has been passed is still a pending suit.”

6. In view of the factual disputes raised in the suit, I am of the view that the questions relating to surrender of leasehold rights and other related aspects could have been adjudicated at a later stage. However, it is noticed that the petitioners have not produced any legal heirship certificate to show that they are the legal heirs of late Balan Nair and Raghavan Nair. The learned counsel appearing for the petitioners undertook to produce those documents within a reasonable period before the trial court, if there is any dispute as