JUDGMENT : Defendants 3 to 7 and 9 in a suit for partition are the appellants in this second appeal. 2. The following is the case set out by the plaintiffs in the plaint: The suit property measuring 40 cents belonged in jenm to one Moolacheri tarwad and the same was outstanding on Ext.A1 mortgage created on 21.7.1888 in favour of one Kodoth tarwad. Though Ext.A1 was a usufructory mortgage, it was alleged by the plaintiffs that there was a lease back arrangement with the mortgagee and Moolacheri tarwad was consequently retaining possession of the suit property. While so, the Karanavans of Moolacheri tarwad executed Ext.A2 superior mortgage in respect of the suit property in favour of one Kannankunhi on 1.11.1895. Kannankunhi later assigned his rights under Ext.A2 mortgage in favour of his six children, namely, Unda, Kumba, Ambu, Vellachi, Kunhikannan and Pakkeeran. Ext.A4 is the assignment deed executed by Kannankunhi in this connection on 29.11.1907. Unda and Kumba died thereafter unmarried and issueless. The remaining children of Kannankunhi later created a further mortgage in respect of the suit property in favour of Kodoth tarwad on 7.5.1929. Ext.A6 is the deed of the said mortgage. It is alleged by the plaintiffs that there was a lease back arrangement at the time of execution of Ext.A6 usufructory mortgage also and consequently, the mortgagors continued to be in possession of the suit property. It is also alleged by the plaintiffs that thereafter, one among the remaining children of Kannankunhi namely Ambu also died unmarried and issueless. As Unda, Kumba and Ambu died unmarried and issueless, it is the case of the plaintiffs that the rights of the said persons over the suit property devolved on the remaining children of Kannankunhi namely, Vellachi, Kunhikannan and Pakkeeran. The plaintiffs in the suit are the successors of Vellachi. Pakkeeran is the first defendant in the suit. Defendants 2 to 9 are the successors of Kunhikannan. It is also alleged by the plaintiffs that the first defendant has transferred his rights in the suit property in favour of his children. The children of the first defendant in whose favour the first defendant has executed documents in respect of the suit property are defendants 10 and 11. According to the plaintiffs, the suit property is in the joint possession of the plaintiffs and defendants and the plaintiffs are entitled to one third share therein. 3. The children of the first defendant in whose favour the first defendant has executed documents in respect of the suit property are defendants 10 and 11. According to the plaintiffs, the suit property is in the joint possession of the plaintiffs and defendants and the plaintiffs are entitled to one third share therein. 3. Defendants 1, 10 and 11 filed a joint written statement. The stand taken by them in the written statement is that the suit property is not one included in Exts.A2, A4 and A6 documents. It was contended by them that Ext.A6 was a sham document, not acted upon. According to the said defendants, the predecessors of the plaintiffs and defendants 2 to 9 namely, Vellachi and Kunhikannan have no rights in the suit property and the same belonged exclusively to Pakkeeran as obtained by him on an oral lease arrangement from Madiyan Koolom Kshethrapalaka Devaswom. It was also contended by them that the first defendant has obtained purchase certificate in respect of the suit property on the above basis under the Kerala Land Reforms Act. Alternatively, it was contended by the said defendants that even if it is found that the plaintiffs or defendants 2 to 9 have any rights in the suit property, the same is lost by their adverse possession. 4. Defendants 2 to 7 and 9 filed a written statement admitting the case pleaded by the plaintiffs as regards the title and possession of the suit property. They, however, contended that their predecessor Kunhikannan and the first defendant have purchased the rights of kodoth tarwad under Exts.A1 and A6 mortgages in terms of Ext.B1 document and therefore the plaintiffs are entitled to claim partition of their share in the suit property only on payment the proportionate mortgage money paid in terms of Ext.B1 document. 5. The trial court though repelled the case set up by the plaintiffs that the suit property belonged in jenm to Moolacheri tarwad and found based on Exts.A10 and A11 adangal extracts that the jenm right in respect of the suit property belonged to Madiyan Koolom Kshethrapalaka Devaswom, it took the view that in so far as the plaintiffs seek partition of their possessory rights over the suit property on the strength of the lease back arrangements pleaded in the plaint, it is immaterial as to who holds the jenm right in respect of the suit property. The trial court then went on to consider the question as to whether the lease back arrangements pleaded by the plaintiffs are correct and answered the said question in the negative holding that the plaintiffs have not established their case of possession based on the lease back arrangements. The trial court also found that the possession of the suit property was with Kodoth tarwad and the possession was obtained from Kodoth tarwad only by the first defendant and Kunhikannan in terms of Ext.B1 document. The trial court further found that as the possession of the suit property was obtained from Kodoth tarwad by the first defendant and Kunhikannan, the plaintiffs have to seek redemption of Exts.A1 and A6 mortgages and recover possession of their share in the suit property on that basis from first defendant and defendants 2 to 9, the successors of Kunhikannan. In so far as the suit was one for partition, and since defendants 2 to 9 admitted the case of the plaintiffs as regards the title and possession of the suit property, the trial court went on to consider the plea of rival title as also the alternative plea of adverse possession set up by defendants 1, 10 and 11 and found that defendants 1, 10 and 11 are in possession of the suit property on the basis of the oral lease arrangement entered into with Madiyan Koolam Kshethrapalaka Devaswom and that the rights, if any, of the plaintiffs and defendants 2 to 9 in the suit property are lost by adverse possession. 6. Defendants 2 to 7 and 9 challenged the decision of the trial court in appeal. Though the appeal was preferred by defendants 2 to 7 and 9, it is seen that the appellate court has affirmed the findings rendered by the trial court and dismissed the appeal on an incorrect assumption that the appeal is one preferred by the defeated plaintiffs. As noted, defendants 3 to 7 and 9 are aggrieved by the decision of the trial court as confirmed in appeal. 7. Heard Sri.S.V.Balakrishna Iyer, learned senior counsel for the appellants as also the learned counsel for the contesting respondents, defendants 10 and 11. 8. In order to appreciate the arguments advanced by the learned counsel on either side, it is necessary to refer to a few facts. 7. Heard Sri.S.V.Balakrishna Iyer, learned senior counsel for the appellants as also the learned counsel for the contesting respondents, defendants 10 and 11. 8. In order to appreciate the arguments advanced by the learned counsel on either side, it is necessary to refer to a few facts. Though, it was contended by defendants 1, 10 and 11 in their written statement that the suit property is not one covered by Ext.A1, A2, A4 and A6 documents and that Ext.A6 is a document not acted upon, the said contentions are not seen pressed into service at the time of trial. It is seen that the Advocate Commissioner appointed in the suit has identified the suit property on the basis of Exts.A1, A2, A4 and A6 documents and the identification of the suit property made by the Advocate Commissioner is not seen disputed by defendants 1, 10 and 11. It is also seen that proceedings were initiated under Section 72C of the Kerala Land Reforms Act at the instance of the first defendant in respect of the suit property as S.M.209 of 1975; that defendants 2 to 9 got themselves impleaded in the said proceedings as additional petitioners; that the Land Tribunal though ordered to assign the suit property to the first defendant and also to defendants 2 to 9 in terms of its order dated 7.4.1976, the said order was interfered with by the appellate authority under the said statute and the suit property was ordered to be assigned exclusively to the first defendant and that the civil revision petitions preferred by the plaintiffs as also defendants 2 to 9 before this court challenging the said decision of the appellate authority have been disposed of by this court leaving open the disputes to be resolved in the civil proceedings. As noted, defendants 2 to 7 and 9 admitted the case of the plaintiffs that the suit property is liable to be partitioned into three shares among plaintiffs, the first defendant and defendants 2 to 9. The only contention raised by them in the written statement was that in so far as Exts.A1 and A6 mortgages were redeemed by their predecessor Kunhikannan and the first defendant, the plaintiffs are entitled to the partition sought for only on payment of the proportionate mortgage money under Exts.A1 and A6. The only contention raised by them in the written statement was that in so far as Exts.A1 and A6 mortgages were redeemed by their predecessor Kunhikannan and the first defendant, the plaintiffs are entitled to the partition sought for only on payment of the proportionate mortgage money under Exts.A1 and A6. Based on Exts.A1, A2, A4, A6 and B1, the trial court accepted the case of the plaintiffs except that relating to the possession of the property. As regards possession, the trial court found that possession was obtained by the first defendant and the predecessor of defendants 2 to 9 in terms of Ext. B1. On the said basis, the trial court also accepted the contention raised by defendants 2 to 7 and 9 as regards the right of the plaintiffs to claim partition and non-suited the plaintiffs. Thereafter, based on the evidence adduced by defendants 1, 10 and 11, the trial court rendered a diametrically opposite finding as regards the possession. It held that defendants 1, 10 and 11 are holding possession of the suit property based on the oral lease granted to the first defendant by Madiyan Koolom Kshethrapalaka Devaswom. It also held that the rights, if any, of the plaintiffs and defendants 2 to 9 in the suit property are lost by the adverse possession of the first defendant. In short, but for the aforesaid findings, in the light of the remaining findings rendered by the trial court, a decree for partition of the share of defendants 2 to 9 in the suit property ought to have been passed in the suit. 9. Now, I shall refer to the arguments advanced by the learned counsel on either side. The learned senior counsel for the appellants pointed out that Ext.B1 is a document that was found to be genuine by the courts below concurrently. It was contended by the counsel that the recitals in the said document would indicate beyond doubt that it is in terms of the said document that the first defendant and Kunhikannan obtained possession of the suit property. According to the learned counsel, in the light of Ext.B1 document, the finding rendered by the courts below that the first defendant was holding possession of the suit property on the strength of the oral lease from Madiyan Koolam Kshethrapalaka Devaswom can be regarded only as perverse. According to the learned counsel, in the light of Ext.B1 document, the finding rendered by the courts below that the first defendant was holding possession of the suit property on the strength of the oral lease from Madiyan Koolam Kshethrapalaka Devaswom can be regarded only as perverse. It was also contended by the learned senior counsel that in so far as the first defendant obtained possession of the suit property along with Kunhikannan, even if it is assumed that Madiyan Koolom Kshethrapalaka Devaswom has any right in the property and even if it is assumed that there was a subsequent oral lease arrangement between the first defendant and Devaswom, the same would not affect the rights of defendants 2 to 9. It was also contended by the learned senior counsel that the parties being co-owners, it was obligatory for defendants 1, 10 and 11 to establish ouster for prescribing their title to the suit property by adverse possession. It was contended by the learned senior counsel that defendants 1, 10 and 11 have not established a case of ouster at all. It was pointed out that the plea of adverse possession has been accepted by the courts below on the basis that the plaintiffs and defendants 2 to 9, who are aware of the fact that the first defendant is claiming exclusive tenancy over the suit property in the proceedings before the Land Tribunal, have not instituted any suit for partition of their share in the suit property within twelve years from the date of knowledge of the proceedings before the Land Tribunal. It was contended by the learned counsel that in so far as the Land Tribunal found that defendants 2 to 9 are co-owners of the property and ordered assignment of the right, title and interest in the property in the joint names of the first defendant as also defendants 2 to 9, it was not necessary for defendants 2 to 9 to institute a suit for partition as they never wanted a decree of partition then and such a suit could have been filed at any time thereafter. It was pointed out by the learned senior counsel that the said decision of the Land Tribunal was reversed and purchase certificate in respect of the suit property was ordered to be issued in the name of the first defendant only in terms of Ext.A7 order on 29.12.1982. It was pointed out by the learned senior counsel that the said decision of the Land Tribunal was reversed and purchase certificate in respect of the suit property was ordered to be issued in the name of the first defendant only in terms of Ext.A7 order on 29.12.1982. According to the learned senior counsel, the possession of the suit property by the first defendant can be regarded as adverse only thereafter and the present suit having been instituted within twelve years from Ext.B8 purchase certificate dated 30.9.1976, it can never be said that defendants 1, 10 and 11 have perfected title to the suit property by adverse possession. It was contended by the learned senior counsel that even the finding rendered by the courts below on the plea of adverse possession can be regarded therefore only as perverse. 10. Per contra, the learned counsel for the contesting respondents made submissions supporting the findings rendered by the courts below. The learned counsel specifically contended that the appellants, namely, defendants 3 to 7 and 9 have not sought a decree for partition at all in the suit and therefore, such a relief cannot be granted to them in the second appeal. 11. Having heard the learned counsel on either side and having perused the impugned decisions, the following substantial questions of law have been formulated for decision in the second appeal: (1) Is not the finding that defendants 1, 10 and 11 are holding possession of the suit property based on the oral lease granted by Madiyan Koolam Kshethrapalaka Devaswom perverse, in the light of Ext.B1 document obtained by the first defendant? (2) Is not the finding that defendants 1, 10 and 11 have perfected title to the suit property by adverse possession unsustainable in law being one rendered without taking note of the effect of the order passed by the Land Tribunal in S.M. No.209 of 1975 dated 7.4.1976? (3) Could defendants 2 to 9 be denied a decree for partition of their one third share in the suit property merely for the reason that they have not specifically prayed for such a decree in the written statement filed by them? 12. (3) Could defendants 2 to 9 be denied a decree for partition of their one third share in the suit property merely for the reason that they have not specifically prayed for such a decree in the written statement filed by them? 12. Question (1): Though it was contended by defendants 1, 10 and 11 that the suit property is not one covered by Ext.A1, A2, A4 and A6 documents and that Ext.A6 is a sham document not acted upon, the said facts were not established by them. Further, there is no reference at all about Ext.B1 in the written statement filed by defendants 1, 10 and 11. As rightly pointed out by the learned senior counsel for the appellants, Ext.B1 was found to be a genuine document by both the trial court as also the appellate court. As found by the trial court, the first defendant and the predecessor in interest of defendants 2 to 9 obtained possession of the suit property in terms of Ext.B1. The recitals contained in Ext.B1 establish the said fact. If that be so, I wonder as to how defendants 1, 10 and 11 could set up a case of independent possession over the suit property. Of course, they can certainly set up a plea of adverse possession and ouster. According to me, in the light of Ext. B1 document, the plea of defendants 1, 10 and 11 that they obtained the suit property based on an oral lease from Madiyan Koolam Kshethrapalaka Devaswom cannot be accepted. There are other convincing reasons also for me to come to the said conclusion. Ext.B1 is a document executed on 19.4.1952. The suit is of the year 1988. The pleading of the said defendants as regards the oral lease, in the written statement filed by them is that the first defendant obtained the oral lease about 40 years ago. The documents relied on by defendants 1,10 and 11 to establish the case of oral lease are Exts.B4 to B8 and Exts. X2 to X4. Among the said documents, the oldest document is Ext.B4. Ext.B4 is an unsigned notice purported to have been issued by the Madiyan Koolam Kshethrapalaka Devaswom to the first defendant claiming rent. It does not contain the official seal of the Devaswom or that of the person who issued the notice. Ext.B4 is dated 14.9.1955. X2 to X4. Among the said documents, the oldest document is Ext.B4. Ext.B4 is an unsigned notice purported to have been issued by the Madiyan Koolam Kshethrapalaka Devaswom to the first defendant claiming rent. It does not contain the official seal of the Devaswom or that of the person who issued the notice. Ext.B4 is dated 14.9.1955. Exts.B5 to B7 series are receipts evidencing payment of rent by the Madiyan Koolam Kshethrapalaka Devaswom to the first defendant. Exts.X4 and X5 have been called for to prove the corresponding counter foils. These documents would indicate that certain amounts have been collected by way of rent by the Madiyan Koolam Kshethrapalaka Devaswom from the first defendant for the period from 14.9.1955 to 3.1.1981. As noted, there is nothing on record to indicate that any payment has been made by the first defendant to the Madiyan Koolam Kshethrapalaka Devaswom prior to Ext.B1 document. Ext.B8 is the purchase certificate obtained by the first defendant in respect of the suit property from the Land Tribunal. As noted, in terms of Exts.A8 and B3 orders, this court held that the order, on the basis of which Ext.B8 purchase certificate has been issued, is not conclusive and the dispute between the parties as regards the suit property was left open to be decided by the civil court. While Ext.B1 categorically recites that the first defendant was put in possession of the suit property in terms of the said document, none of the documents relied on by defendants 1, 10 and 11 give a clear idea as to how the first defendant obtained possession of the property. On an evaluation of the materials on record, I have no doubt that the first defendant obtained possession of the property along with his brother Kunhikannan in terms of Ext.B1 document as found concurrently by the courts below. True, the documents produced by defendants 1,10 and 11 would indicate that the first defendant has paid amounts to Madiyan Koolam Kshethrapalaka Devaswom by way of rent. True, the documents produced by defendants 1,10 and 11 would indicate that the first defendant has paid amounts to Madiyan Koolam Kshethrapalaka Devaswom by way of rent. In so far as it is found that the first defendant obtained possession of the suit property in terms of Ext.B1 document, the payments made by the first defendant to Madiyan Koolam Kshethrapalaka Devaswom evidenced by Exts.B5 to B7 series can only be taken as evidence of the clandestine attempts made by the first defendant to defeat the rights of the predecessors of the plaintiffs and defendants 2 to 9. Such payments, according to me, would not, and shall not affect the rights of defendants 2 to 9. I am, therefore, in complete agreement with the contention advanced by the learned senior counsel for defendants 2 to 7 and 9 that the finding rendered by the courts below that the first defendant obtained possession of the suit property from Madiyan Koolam Kshethrapalaka Devaswom on an oral lease, is perverse. It is all the more so as the said finding is not consistent with the various other findings rendered by the courts below based on Exts. A1, A2, A4 and A6 documents. The question is answered accordingly. 13. Question (2) : This being a question involving the law of adverse possession, before I delve into that question, it is apposite to refer to a few observations made by the Apex Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan [ (2009) 16 SCC 517 ]. The following are the observations : “Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation." Despite the aforesaid, the law is still in force and the courts are in an uncomfortable position to give effect to the law which was found to be irrational, illogical and wholly disproportionate by the Apex Court. Be that as it may, I have extracted the observations made by the Apex Court only to reiterate the position that there cannot be any equitable considerations at all in favour of the party setting up the plea of adverse possession. It is settled by now beyond any doubt that possession of a property by one co-owner is on behalf of all other co-owners and the co-owner in possession is holding the property in law, in trust for the remaining co-owners as well. There cannot also be any doubt to the proposition that if the dispute is between co-owners, the party setting up the plea of adverse possession shall establish not only that his possession is adverse to the interests of the remaining co-owners, but also that he has ousted them completely from the possession of the property. In order to constitute ouster, there must be evidence of open assertion of hostile title by positive overt acts coupled with exclusive possession and enjoyment by one or more among the co-owners to the knowledge of the remaining co-owners. 14. In order to constitute ouster, there must be evidence of open assertion of hostile title by positive overt acts coupled with exclusive possession and enjoyment by one or more among the co-owners to the knowledge of the remaining co-owners. 14. As noted, the trial court found that the first defendant has prescribed title to the suit property by adverse possession on the premise that the first defendant, by initiating proceedings under the Kerala Land Reforms Act for assignment of the right, title and interest in the suit property, made an assertion of his exclusive possession of the suit property and both the plaintiffs and defendants 2 to 9, who got themselves impleaded in the said proceedings, cannot plead ignorance of the knowledge of the assertion made by the first defendant as to his exclusive possession of the suit property. The view taken is that since no proceedings whatsoever was initiated either by the plaintiffs or by defendants 2 to 9 for enforcing their rights in the suit property within the time prescribed by law after they have put to notice of the assertion made by the first defendant as to the possession of the property, the first defendant must be held to have prescribed title to the suit property. Though the first defendant has a case that he was holding the suit property adverse to the interests of all others who have rights in the property for more than forty years prior to the institution of the suit, there is nothing to indicate that the said state of mind of the first defendant was ever made known to the plaintiffs or to defendants 2 to 9 until they got themselves impleaded in the proceedings initiated at the instance of the first defendant before the Land Tribunal. It is in the said circumstances, the trial court proceeded to hold adverse possession and ouster in favour of the first defendant on the premise that the plaintiffs and the defendants 2 to 9, who have come to know about the assertion of exclusive possession made by the first defendant, have not initiated any action within the statutory period for enforcing their rights in the property. The question arises for consideration is, therefore as to whether the said view expressed by the trial court is correct. The question arises for consideration is, therefore as to whether the said view expressed by the trial court is correct. That takes me to the incidental question as to whether a co-owner should institute a suit for partition invariably in all cases where he/she is put on notice of the intention of the co-owner in possession of the property to dispossess other co-owners. I have posed the aforesaid question for consideration as there would be cases where the parties may not be requiring partition or where partition may not be a viable solution for settlement of disputes between the parties. A case where only a trivial extent of land is involved would be one of such instances. Likewise, an item of property where a family house is situated and one among the co-owners who has no other abode is residing in that house and the co-owners who are out of possession, despite the intention of the co-owner in possession to exclude others, would not be wanting to drive the person in possession to streets, would be another instance of this nature. In Ram Prasad Tewari and others v. Sankoor Tewari (1965 ALJ 515), the Allahabad High Court held that it is not necessary invariably in all cases for one co-owner to sue for partition and in order to protect his interest in respect of the property, it is suffice for him to seek a decree of injunction restraining the co-owner in possession of the property from interfering with the possession of others. In Chanan Singh v. Santa Sing [AIR 1950 Pepsu 5], placing reliance on an earlier decision of the Lahore High Court, it was held that the rights of a co-owner will be sufficiently safeguarded if he obtains a decree declaring his status as co-owner of the property subject of course to adjustment to be made at the time of partition. The proposition of law endorsed in terms of the said judgment as extracted therein reads thus : “that the plaintiffs right will be sufficiently safeguarded if he is granted a decree for declaration that the possession of the transferees in the lands in dispute will be that of co-sharers subject to adjustment at the time of partition” It is thus evident that if one co-owner does not want to institute a suit for partition, the law does not compel him to institute a suit for partition. Coming back to the facts of the case on hand, Ext.A7 order indicates that the suo motu proceedings under the Kerala Land Reforms Act initiated at the instance of the first defendant culminated in favour of both the first defendant as also defendants 2 to 9. An order to that effect was passed by the Land Tribunal on 07.04.1976. It is the said order that was challenged by the first defendant in appeal before the appellate authority under the Kerala Land Reforms Act. Ext.A7 is the order passed by the appellate authority in the said appeal. It is in terms of Ext.A7 order, the appellate authority accepted the case of exclusive possession of the property by the first defendant under a different title. It is not the law that the plaintiff should rush to the court to get a declaration of his rights within the time allowed from the date of denial of right or threat irrespective of the nature of the denial or threat. It is open to him to treat only such denial or threat which in his opinion constitutes effective and unequivocal invasion or infringement of his rights in the land as starting point for computing the period of limitation for a suit [See Ramachander Naik v. Linga Ramachanderiah (AIR 1971 Andhra Pradesh 395)]. In the circumstances, in the light of the order passed by the Land Tribunal dated 07.04.1976 which is impugned in the appeal which resulted in Ext.A7 order, according to me, it was unnecessary for defendants 2 to 9 to institute any suit for partition of their rights in the suit property as the order passed by the Land Tribunal dated 07.04.1976 would amount to a declaration that they are in joint possession of the suit property. Once a court or tribunal of competent jurisdiction holds that two persons are in joint possession of a property, a suit for partition could be filed at any time. Of course, in terms of Ext.A7 order, the order dated 07.04.1976 of the Land Tribunal was reversed. It is possible to contend that the possession of the property by the first defendant thereafter is adverse to the interest of others. But, Ext.A7 order is seen passed only on 29.12.1982 and the suit for partition from which the second appeal arose is instituted within 12 years thereafter. It is possible to contend that the possession of the property by the first defendant thereafter is adverse to the interest of others. But, Ext.A7 order is seen passed only on 29.12.1982 and the suit for partition from which the second appeal arose is instituted within 12 years thereafter. True, defendants 2 to 9 were not the plaintiffs in the suit, but in a suit for partition, defendants are also to be treated as the plaintiffs as when a suit for partition is instituted once, it is unnecessary for others who have shares in the property to institute another suit. In the light of what is stated above, according to me, the finding rendered by the trial court on the plea of adverse possession without taking note of the effect of the order passed by the Land Tribunal dated 07.04.1976 is unsustainable in law. The question is thus answered in favour of the appellants. 15. Question (3): As noted, in the written statement filed by defendants 2 to 7 and 9, they have admitted the case of the plaintiffs as regards the title and possession of the suit property. The only contention raised by them in the written statement is as regards the right of the plaintiffs to seek a decree for partition without paying the proportionate mortgage money under Exts.A1 and A6 mortgages. The suit being one for partition, at the initial stage, the court is expected to pass only a preliminary decree declaring the rights of parties. True, in so far as the court found that the plaintiffs are not entitled to the decree for partition sought by them and in so far as defendants 2 to 9 have not specifically sought preliminary decree as regards their share in the suit property by paying the requisite court fee, the suit was dismissed. But in so far as it is found now that defendants 2 to 9 have 1/3 share in the suit property, according to me, a preliminary decree can certainly be passed in their favour as they want such a decree for the purpose of avoiding a further litigation between the parties in respect of the same subject matter. It is all the more so since there is no impediment for the said defendants to seek a preliminary decree in respect of their share in the suit property in a subsequent suit. It is all the more so since there is no impediment for the said defendants to seek a preliminary decree in respect of their share in the suit property in a subsequent suit. As defendants 2 to 9 have not paid court fee for the preliminary decree sought, a preliminary decree can be passed subject to payment of court fee as is usually done by this court in similar cases. (See Kamalam v. Devaki [ 2006 (2) KLT 499 ]). The question is answered accordingly. In the light of the findings rendered on the substantial questions of law formulated for decision in the second appeal, the impugned judgments are set aside and a preliminary decree is passed in O.S No.199 of 1988 on the files of the Munsiff Court, Hosdrug declaring the 1/3 share of defendants 2 to 9 in the suit property on the condition that they shall be allotted their share only on payment of court fee payable for the preliminary decree.