The court upheld the right of a plaintiff to seek partition where the opposing party failed to provide adequate evidence to contest the claim.

J U D G M E N T

Plaintiff concurrently non-suited in a suit for partition has come up with the present appeal raising serious grievance regarding the manner in which the courts below have appreciated the pleadings and the evidence on record.

2. Sans all controversy, in the present appeal, the plaintiff/appellant confines her claim for partition over item Nos.4 and 5 of the decree schedule, which consist of 39.5 cents and 9.75 cents. The properties in question originally belong to one Andi Asari, had a vermpattom right over the properties and got jenmam rights on the basis of five purchase certificates issued by the Land Tribunal, Kuzhalmannam. It is stated that item Nos.4 was sold to one Thanka at the time of marriage of the plaintiff. Though the

2^nd respondent herein raised the said objection in his written statement, he failed to produce any documentary evidence to show that the brother of the plaintiff had sold the property to the 6^th defendant for meeting the marriage expenses. Since there was a serious dispute raised with regard to the entitlement of the plaintiff to seek partition of the properties covered by the purchase certificate, an Advocate Commissioner was taken out for identifying the properties. Altogether 14 items of properties were identified by the Advocate Commissioner and finding that majority of the properties are with the possession of the third parties under a separate assignment deed, the plaintiff gave up her claim over the other properties and confined to 10 items of properties as shown in the decree schedule. In the present appeal, the controversy is in respect of item Nos.4 and 5. As stated earlier, item No.4, the 2^nd defendant claimed that it is under a deed of conveyance that the brother of the plaintiff sold the property to Thanka. Item No.5 was identified by the Advocate Commissioner at the time of inspection and it was reported that 9.75 cents is in possession of the said Thanka. Accordingly, Thanka was impleaded as additional 6^th defendant. She remained ex parte. But then, the trial court found that, if the property having an extent of 9.75 cents in possession of Thanka, is one which is sold by the brother of the plaintiff and therefore declined to pass a preliminary decree in respect of these properties and dismissed the suit. Aggrieved, the plaintiff preferred A.S No.236/2006 before the Additional District Court -II, Palakkad, which was also dismissed and hence the present appeal.

3. This Court by order dated 10.10.2011, framed the following substantial questions of law:- When the second defendant who alone contested the suit admitted that item No.4 of the plaint schedule properties originally belonged to Andi Asari and it was only contended that the property was sold in favour of Thanka who was subsequently impleaded as 6^th defendant, and the 6^th defendant did not written statement and did not contend that she is in possession of item No.4 of the plaint schedule properties or she got assignment of the said property, whether courts below were justified in not granting a decree for partition of item No.4 of the plaint schedule properties and whether courts below were justified in holding that as recovery of possession of the property was not sought from the 6^th defendant, item No.4 cannot be divided.

4. Heard Shri.P.K.Mohanan, the learned counsel appearing for the appellant, Shri.K.I.Sajeer, the learned counsel appearing for the legal heirs of the 2^nd respondent, who are respondents 1 and 7 to 9 in the appeal and Shri.Rajesh Sivaramankutty, the learned counsel appearing for the 5^th respondent. None appe