IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14786 of 2009(O)
1. VIDYA SAGAR,AGED 72 YEARS,
... Petitioner
Vs
1. A.SURESAN,AGED 50 YEARS,
... Respondent
For Petitioner :SRI.K.P.SREEKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :29/05/2009
O R D E R
V. RAMKUMAR , J.
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W.P.(C) No. 14786 of 2009
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Dated this the 29th day of May, 2009.
JUDGMENT
The petitioner who is the plaintiff in O.S. No. 586 of 2003,
challenges Ext.P12 order dated 17.03.2009 passed by the Sub
Court, Thrissur as per which the court has upheld the objection
of the 7th defendant (respondent herein) that the suit filed by the
petitioner is barred. The present suit was one for partition and
separate possession of the petitioner’s 2/5 share over the plaint
schedule properties and for a declaration that the 7th defendant
is not entitled to any right over the suit properties and for a
perpetual injunction restraining the 7th defendant from taking
any steps in pursuance of the preliminary decree passed in O.S.
No. 555 of 1993 on the file of the Sub Court, Thrissur.
2. I am not going into the details of the reasoning given by
the court below in Ext.P12 order. The petitioner was the 5th
defendant in the earlier suit for partition filed as O.S. No. 555 of
1993 in which the very same properties were sought to be
partitioned. The present 7th defendant was the plaintiff in that
suit. A preliminary decree was passed on 20.01.1998 as per
W.P.(C) No. 14786/2009 : 2 :
which the shares of the parties were declared. The petitioner
was found entitled to 1/5 share. According to him, besides he
being one of the five co-owners, he had obtained assignment of
the 1/5 share of another co-owner Chandrangada Menon, a
defaulter, in a revenue sale as evidenced by Ext.P3 sale deed
dated 07.07.1978. If as a matter of fact, the petitioner had
obtained 1/5 share of one of the co-owners and he himself had
1/5 share, he ought to have canvassed for his 2/5 share in O.S.
No. 555 of 1993. That having not been done, his remedy is not
to file a fresh suit for partition. Instead, he will have to either
seek a review of the preliminary decree passed in O.S. No. 555
of 1993 or file an appeal against the preliminary decree passed
in that suit. The court below was thus fully justified in deciding
the issue regarding maintainability of the suit as a preliminary
issue and upholding the objection raised by the respondent
herein. Without prejudice to the right of the petitioner to work
out any of the aforesaid remedies, this petition is dismissed.
Dated this the 29th day of May, 2009.
V. RAMKUMAR, JUDGE.
W.P.(C) No. 14786/2009 : 3 :
rv