IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 WP(C).No. 14786 of 2009(O) -------------------------- OS.555/1993 of SUB COURT,THRISSUR OS.586/2003 of I ADDL.SUB COURT, THRISSUR .................... PETITIONER(S): --------------- VIDYA SAGAR,AGED 72 YEARS, S/O.LATE KALAPPURAKKAL KRISHNA MENON,'GREEN COTTAGE',TRIKKUMARAKKUDAM,AYYANTHOLE,TRICHUR. BY ADV. MR. K.P.SREEKUMAR RESPONDENT: --------------- A.SURESAN,AGED 50 YEARS, S/O.LATE GOPALAKRISHNA MENON, ALLATH HOUSE, ANTHIKKAD,NOW RESIDING AT T.C.47/1044,ASOK NAGAR, KANJANI ROAD,AYYANTHOLE,TRICHUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== W.P.(C) No. 14786 of 2009 ========================== 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