1992 (1) TMI 356

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..... e plaintiff Chinna Appissi and her sister Kunchi Appissi and brother Kunhunni Nambiar and they were in possession of the plaint schedule property. On the death of Chinna Appissi, the property vested with the plaintiffs and defendants jointly and they are in joint possession and enjoyment. Defendants 13, 42 and 52 sold some timber trees without the consent of the plaintiff and other defendants. So, a petition was filed before the police and the matter was amicably settled. But still, defendants 13, 14, and 52 were making attempts to cut and sell trees. In the circumstances, plaintiffs sought a partition, but it was not heeded to by contending defendants. It is in these circumstances, the plaintiff sought for partition and separate possession .....

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..... n Nair vested in the 13th defendant and in a partition in the family of 13th defendant the property was allotted to 15th and 16 defendants. This question has been elaborately considered by the trial Court. It came to the conclusion that there is absolutely no evidence to show the 13th defendant was holding the property for and on behalf of the tarwad. In that view the trial Court held that the plaint B schedule property is not liable to be partitioned. The trial Court did not think it is necessary to consider the question of adverse possession and limitation in view of the above findings and no findings were entered on issues 2 to 7. On appeal, the learned Subordinate Judge set aside the finding and remanded the matter for fresh disposal af .....

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..... tarwad. As a matter of fact, the trial Court went into the question of family character of property and came to the conclusion on the basis of the materials on record that the evidence does not support the claim of the plaintiff that the plaint schedule property belonged to the thavazhi. As indicated above an issue was framed on the question whether property is a tarwad property or not. In the circumstances, I do not find any justification for the appellate Court to remand the matter to enable an amendment of the plaint. Supreme Court has pointed out in Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884 that when each party went to trial fully knowing the rival case and led all the evidence not only in support of its own contentio .....

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