JUDGMENT : This appeal is at the instance of the 2nd plaintiff in O.S.No.56 of 2006 before the Court of Munsiff-Magistrate, Perinthalmanna. The suit is one for partition of the property scheduled to the plaint. 1st defendant is the brother of the plaintiffs. Defendants 2 and 3 are purchasers of the property from the 1st plaintiff and 1st defendant. 2. Shorn off unnecessary details, the relevant pleadings are as follows: Properties originally belonged to the father of plaintiffs and 1st defendant, viz., Kunhiraman. Kunhiraman had two wives. After the death of Kunhiraman, plaintiffs and 1st defendant partitioned the properties as per Ext.B1 partition deed of the year 1982. In fact, deceased Kunhiraman had another daughter through his first wife by name Kuttiy Ammu @ Notti. Since she was not made a party to Ext.B1 partition deed, she filed O.S.No.2 of 1983 seeking partition of the assets left behind by deceased Kunhiraman. That suit was decreed in her favour finding that she was entitled to get 1/4th right over the properties. Since the plaintiffs and 1st defendant, who were defendants in that suit, did not pay court fee for separate allotment, their shares were kept in common finding that all the three were together entitled to 3/4 shares. Each of the parties were found to have been entitled to 1/4th share in the assets of deceased Kunhiraman. Subsequently Kuttiy Ammu @ Notti pursuant to the final decree in the suit, filed an execution petition and got delivery of the property. It is therefore contended by the plaintiffs that they are entitled to get a partition of the property outstanding in the possession of the co-owners after giving a due share to Kuttiy Ammu @ Notti. 3. 1st defendant resisted the suit by contending that the parties have taken possession of the property in accordance with Ext.B1 partition deed and both the 1st plaintiff and 1st defendant had assigned portions in tune with Ext.B1. It is also his contention that the allotment to Notti was effected by taking a portion of the property set apart to the 1st defendant as per Ext.B1 partition deed. 4. It is interesting to note that the 2nd plaintiff/appellant herself filed O.S.No.16 of 2009 seeking a permanent prohibitory injunction against the 1st defendant alleging that he was attempting to trespass upon the property allotted to her as per Ext.B1 partition deed. 4. It is interesting to note that the 2nd plaintiff/appellant herself filed O.S.No.16 of 2009 seeking a permanent prohibitory injunction against the 1st defendant alleging that he was attempting to trespass upon the property allotted to her as per Ext.B1 partition deed. Curious fact to be noted is that this suit was filed after the dismissal of the present suit. However, the fact remains that O.S.No.16 of 2009 was not adjudicated upon merits as it was dismissed when the counsel reported no instruction. Therefore filing a second suit may not have any impact on the present suit. 5. Trial court dismissed the suit finding that the plaintiffs have no consistent case. According to the trial court, even after the decree in O.S.No.2 of 1983 the parties kept possession of the property in accordance with Ext.B1 partition deed. Some unconvincing reasons have been stated by the courts below for finding that the present appellant has no right to seek partition of the property over and again. 6. Lower appellate court in an appeal filed by the present appellant and the 1st plaintiff also found that there are inconsistencies in the case set up by the plaintiffs. In paragraph 10 of the lower appellate court’s judgment, the court below noted that applications were incessantly filed by the plaintiffs to amend the plaint even at the stage of appeal. It was taken as an indication to find that the plaintiffs have no consistent case. Following observations are also made regarding the merit of the appellant’s case: “ ............ The evidence of the first plaintiff as PW1 shows that the parties had acted upon Ext.B1 partition deed and based on which they had also sold out some properties. But they came up with the suit as if such a partition deed is not valid. It is to be noted that the partition deed was executed even before the decree in O.S.No.2/83. But even after the decree and also the delivery of 1/4th share of Kuttiy Ammu as per the execution proceedings in that suit, the parties accepted the partition deed and acted based on that. After having done so, the plaintiffs are estopped from contending otherwise. PW1 admitted that after the delivery of the property to the plaintiffs in O.S.2/83, she sold some property in 1993 and that property is the share allotted to her in the partition deed. After having done so, the plaintiffs are estopped from contending otherwise. PW1 admitted that after the delivery of the property to the plaintiffs in O.S.2/83, she sold some property in 1993 and that property is the share allotted to her in the partition deed. She also stated that the properties so allotted to her as per partition deed was in her possession and she paid tax and that is why she was able to transfer that property. She also stated that she has not challenged that partition deed in any court. She also would say that it was by accepting that document, that she sold property to an orphanage. Later she stated that the second plaintiff and herself and the first defendant accepted the partition deed and acted in accordance with it. She specifically stated in cross-examination that she had accepted the partition deed for the reason that the 1/4th share delivered to Kuttiy Ammu was taken from the property allotted to the first defendant as per the partition deed. She also conceded that there was no decrease in the extent of her share set apart to her as per the partition deed.” 7. Learned counsel for the appellant contended that some admissions by the 1st plaintiff shall not be taken as a reason to defeat the case of 2nd plaintiff (present appellant). Ext.B2 is a document by which the 1st plaintiff assigned property to the 2nd defendant after disposal of O.S.No.2 of 1983 asserting her right through Ext.B1 partition deed. Admittedly the 2nd plaintiff (appellant) has not assigned any property subsequent to the decree in O.S.No.2 of 1983. Learned counsel for the appellant brought my attention to the deposition of DW1 to the effect that the house constructed for and on behalf of the present appellant is included in a property owned by him. It is the complaint of the appellant that the court below did not consider the fatal admissions by DW1 and its attention was riveted only to the incongruities in the deposition of PW1. Even if PW1’s deposition shows any debilities, it will not affect the strength of the appellant’s case, contended the learned counsel for the appellant. 8. I am of the view that oral evidence may not be of any significance in this case. Even if PW1’s deposition shows any debilities, it will not affect the strength of the appellant’s case, contended the learned counsel for the appellant. 8. I am of the view that oral evidence may not be of any significance in this case. The only question to be decided in this case is whether Ext.B1 partition deed can stand after a decree for partition passed in O.S.No.2 of 1983. In the light of the contentions, the substantial questions of law framed are as follows: (i) Can a party claim rights over the property got allotted by a partition deed if the same property was the subject matter in a subsequent suit for partition between the same parties? (ii) Whether the finding that a partition deed survived between the parties even after the decree in a subsequent suit for partition between the same parties in respect of the same property is correct? (iii) Is not a finding in the application for passing second preliminary decree that only a fresh suit for partition is maintainable is binding on all the parties thereto? 9. There cannot be any doubt that partition of joint properties can be made only at the junction of all the rightful co-owners. If one of the co-owners was excluded by others, certainly the excluded co-owner has a right to claim re-partition of the properties, of course subject to the law of limitation and a claim of ouster and adverse possession. If those legal principles were not established against the claimant, certainly an excluded co-owner has a right to file a suit for partition. Merely for the reason that a deed was executed between some of the co-owners, it can never tend to defeat the rights of a lawful co-owner. Equally settled is the proposition under law that once partition has been effected between some of the co-owners and that is re-worked on account of a challenge by an excluded co-owner, the original partition deed cannot have any legal effect, except touching the reservations and equities emanating from the original document. In this case, acting upon Ext.B1 partition deed portions have been assigned by 1st plaintiff and 1st defendant to strangers. Certainly the purchasers are entitled to be protected by allotting the respective properties to their assignors. In this case, acting upon Ext.B1 partition deed portions have been assigned by 1st plaintiff and 1st defendant to strangers. Certainly the purchasers are entitled to be protected by allotting the respective properties to their assignors. At any rate, once a partition deed executed between some of the co-owners has been attacked by an excluded co-owner and that challenge was upheld by a court of law, no one can say that the parties to the partition suit, wherein the court found that each of them had a definite share, should go by the allotment in the partition deed. Learned counsel for the appellant brought to my notice that as per the allotment in the final decree in O.S.No.2 of 1983, a portion set apart to the appellant in Ext.B1 has been allotted to the plaintiff in O.S.No.2 of 1983. This is disputed by the learned counsel for the 1st defendant contending that it is the 1st defendant’s property that was given to the plaintiff in O.S.No.2 of 1983. However, that issue, if at all survives, can be resolved in the final decree proceedings. That will not take away the right of appellant to claim share in the property set apart in common to the 1st plaintiff and 1st defendant as per the decree in O.S.No.2 of 1983. 10. The substantial questions of law Nos.(i) and (ii) above can only be found in a way that once the decree passed in a subsequent suit substantially affect the properties included in a partition deed, the deed cannot be said to be surviving even after the decree affecting the allotment made therein. It is a fundamental principle that a partition is an agreement between the parties and it can stand or fall in full and not in part. Therefore these questions are decided in favour of the appellants. 11. Another reason stated by the lower appellate court while dismissing the appeal is that in O.S.No.2 of 1983 the plaintiff filed an application for passing a supplementary preliminary decree subsequent to the final decree. That was rightly rejected by the lower appellate court. It shall not be taken as a reason for negating the rights of a plaintiff to file a subsequent partition suit in respect of a property kept in common by the decree in an earlier partition suit. Therefore that observation by the lower appellate court is also incorrect. That was rightly rejected by the lower appellate court. It shall not be taken as a reason for negating the rights of a plaintiff to file a subsequent partition suit in respect of a property kept in common by the decree in an earlier partition suit. Therefore that observation by the lower appellate court is also incorrect. This issue is answered accordingly. In the result, the ` The impugned judgments and decrees passed by the courts below are set aside. A preliminary decree for partition is passed in respect of the properties set apart in common as per the decree in O.S.No.2 of 1983 of Munsiff-Magistrate Court, Perinthalmanna allotting 1/3rd share to the appellant. It is made clear that defendants 2 and 3, who are subsequent assignees from 1st plaintiff and 1st defendant, are entitled to get their property set apart to their respective assignors so as to effectuate the assignments in their favour. Parties are at liberty to move for passing a final decree.