IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 RSA.No. 875 of 2008() --------------------- AS.45/2007 of ADDL. DISTRICT COURT, PARAVUR OS.78/2005 of MUNSIFF COURT,ALUVA .................... APPELLANT/APPELLANT/PLAINTIFF THOMAS, AGED 57 YEARS, S/O. EERALIL KURIAKOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): --------------- 1. MARIAMMA, AGED 59 YEARS, W/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE 2. ELIYAMMA, AGED 40 YEARS, D/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE 3. RAJU, AGED 38 YEARS, S/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE 4. REENA, AGED 35 YEARS, D/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE 5. VARGHESE, AGED 52 YEARS, W/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE 6. POULOSE , AGED 64 YEARS, S/O. EERALIL VARIYATH, NEDUMBASSERY KARA NEDUMBASSERY VILLAGE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. No. 875 of 2008 * * * * * * * * * * * * * * * * * * Dated: 5-12-2008 JUDGMENT The plaintiff in O.S. No. 78 of 2005 on the file of the Munsiff's Court, Aluva is the appellant in this Second Appeal. The said suit was for partition and separate possession of the plaintiff's share over the plaint schedule property admeasuring 69 cents in Sy. No. 217/9 A of Chengamanad Village after separating 17.25 cents exclusively belonging to the 6th defendant. 2. The plaintiff along with one late Paulose and 5th defendant Varghese are the sons of one Kuriakose. The first defendant is the widow of the said Paulose and defendants 2 and 4 are his children. The 6th defendant is the son of Vareed, the brother of plaintiff's father Kuriakose. 3. The case of the plaintiff is that the plaintiff and his two brothers together acquired 51.750 cents of R.S.A. No. 875 of 2008 -:2:- property comprised inSy. No. 271/9A of Chengamanad Village as per pattayam issued in the year 1975 by the Land Tribunal Parakadvu. The said survey number takes in another extent of land admeasuring 17.250 cents belonging to 6th defendant as per Ext.A1 partition deed dated 20-8- 1962. Since the property of the 6th defendant and the 51.750 cents acquired by the three brothers as per the pattayam obtained in the year 1975 are lying contiguously without any identifiable boundary in between, it has become necessary for the plaintiff to seek partition of the property covered by the pattayam after separating 17.250 cents belonging to the 6th defendant. 4. As rightly observed by the courts below, the property scheduled to the plaint is not 51.750 which according to the plaintiffs belong to the three co-owners obtained under the pattayam of 1975. But the plaint schedule property is shown as 69 cents which not only includes the pattayam property but also the 17.250 cents of land exclusively belonging to the 6th defendant who is not R.S.A. No. 875 of 2008 -:3:- a co-owner along with the plaintiffs and defendants 1 to 5. The suit was, therefore, dismissed by the courts below holding that the plaintiff could not have included the self acquired property of the 6th defendant along with the co- ownership property and included the relief of partition and separate possession of his share after separating the property belonging to the 6th defendant. If the property belonging to the 6th defendant is lying contiguous to the co-ownership property, the plaintiff had a separate cause of action against the 6th defendant . Merely because he is not able to identify the 17.250 cents of property belonging to 6th defendant he could not have clubbed the two causes of action in one suit resulting in misjoinder of parties. Hence the suit was rightly dismissed by the courts below. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The substantial questions of law formulated in this second appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine . It is further made R.S.A. No. 875 of 2008 -:4:- clear that the dismissal of the suit shall not preclude the plaintiff from instituting a suit against the 6th defendant for fixation of boundary of the property admeasuring 51.750 cents covered by Ext.A1 partition deed and the property of the 6th defendant. Dated this the 5th day of December 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani.