JUDGMENT : M.A.ABDUL HAKHIM, J. 1. Appellants are the plaintiff Nos.3 & 4 in the suit. The respondents are the plaintiffs 1, 2, 5 & 6 and the defendants 6 to 13. The suit was filed for the partition of Plaint A & B schedule properties. There are 12 items of immovable properties in the plaint A schedule property and 9 items of movable properties in the plaint B schedule. 2. Plaintiffs filed the suit for partition of the plaint schedule properties on the allegations that the plaint A schedule properties are a school and appurtenant land under the co-ownership and joint possession of the plaintiffs and the defendants who are the members of Thavazhi of the first defendant governed by Madras Marumakkathayam Rule of Succession applicable to the Nair community. A partition was effected among the Thavazhi members as per Partition Deed No.137/1958 of SRO Kuzhalmannam. The plaint schedule properties were not subjected to partition in the said Partition Deed and it was kept as a common property. During the time of the said partition, the second defendant as the Karanavar of the Thavazhi and being a teacher, was looking after the affairs of the school. A Society by the name Kuthannoor Educational Society was formed and later it became dysfunctional. The second defendant took care of the management of the school and took care of its affairs as Thavazhi property. The facilities in the school including furniture thereof were acquired out of Thavazhi funds. When the Partition Deed was executed, the second defendant incorporated provisions to his advantage neglecting the interest of the minor members of the Thavazhi that by receiving 3/4 th of the amounts spent for the school from him, the other members of the Thavazhi have to release their rights over the school in favour of the second defendant. Thereafter he preferred O.S.No.395/1983 to enforce the said provision. Even though the properties were purchased for the school, the Title Deeds thereof happened to be executed in the name of the second defendant. Taking advantage of the same, he is raising an unjustifiable claim and right over those properties. Each of the plaintiffs and the defendants has 1/14 share over the plaint schedule properties. 3. The plaintiffs claimed partition of the plaint schedule properties and allotment of separate possession of the respective shares to the plaintiffs and the defendants. Taking advantage of the same, he is raising an unjustifiable claim and right over those properties. Each of the plaintiffs and the defendants has 1/14 share over the plaint schedule properties. 3. The plaintiffs claimed partition of the plaint schedule properties and allotment of separate possession of the respective shares to the plaintiffs and the defendants. In substance, the claim of the plaintiffs is that the plaint schedule properties are the Thavazhi properties which are liable to be partitioned among the plaintiffs and the defendants who are the members of the Thavazhi. 4. The suit was filed by six numbers of plaintiffs and 8 numbers of defendants. Originally, the second defendant alone contested the suit. On his death, the 11 th defendant, who is one of his legal heirs, contested the suit. 5. The defendants 1, and 3 to 7 filed Written Statement supporting the partition sought by the plaintiffs. But they did not pay the court fee for the separate allotment of their share. 6. The second defendant filed Written Statement contending, inter alia, that the entire plaint schedule items are not properties of the school. No movable or immovable assets was acquired for the school out of the Thavazhi funds. The school building and the landed properties of the school, movable assets of the school including furniture are the personal properties of the second defendant, over which the plaintiffs and the other defendants have no manner of right. The present suit is instituted as a counterblast to O.S.No.395/1983 preferred by the second defendant. After partition of the year 1958, the Thavazhi has come to an end. There existed any other property as Thavazhi property well before the partition and even after the partition. The school and its assets were regarded by the members of the Thavazhi as the personal properties of the second defendant. The second defendant acquired the school and its properties much before the execution of the Partition Deed of the year 1958. It was under the direction of the father of the second defendant that provisions were incorporated in the Partition Deed that out of the total amount spent for the school 3/4 is to be given by the second defendant to the other members of the Thavazhi. The Society became extinct and the property is not vested with Society. He prayed for dismissal of the suit. 7. The Society became extinct and the property is not vested with Society. He prayed for dismissal of the suit. 7. During the pendency of the suit, the second defendant died on 16.11.2007 and his legal heirs were impleaded as the defendants 9 to 11 and the third defendant died and his legal heirs were impleaded as defendants 12 & 13. 8. The 11 th defendant filed Written Statement contending that O.S.No.395/1983 filed by the second defendant was decreed in favour of the second defendant. Appeal and Special leave Petition preferred by the plaintiffs herein against the said judgment and decree has also been dismissed. Pursuant to the finality of the judgment and decree in O.S.No.395/1983, the 11 th defendant deposited the sum of Rs.41,202/- being the 3/4 th amount spent for the school, payable to the relatives of the second defendant pursuant to the direction in the Partition Deed of 1958. Such a deposit was made by the 11 th defendant, being the legatee under the Will executed by the second defendant. The plaintiffs are bound to execute a Release Deed in favour of the 11 th defendant in terms of the provisions in the Partition Deed of 1958 and in compliance with the decree in O.S.No.395/1983. As per the Will executed by the second defendant, properties covered by Document Nos.34/1957, 317/1955, 79/1955, 78/1955, 80/1955, 376/1958 and 1460/1995 together with the buildings therein and managership of the school therein are vested with the 11 th defendant. The said properties were the self-acquired own properties of the deceased original second defendant over which neither the plaintiffs nor the defendants have any manner of right. The present suit is barred by res judicata and estoppel in view of the finality of the judgment and decree in O.S.No.395/1983. 9. No oral evidence was adduced by either side. From the side of the plaintiffs, Exts.A1 to A7 were marked. From the side of the defendants, Exts.B1 to B6 were marked. The Commission Reports were marked as Exts.C1 to C3 and the sketch was marked as Ext.C3(a). 10. The Trial Court dismissed the suit holding that the suit is barred by res judicata and constructive res judicata in view of O.S.No.395/1983 instituted by the second defendant. 11. From the side of the defendants, Exts.B1 to B6 were marked. The Commission Reports were marked as Exts.C1 to C3 and the sketch was marked as Ext.C3(a). 10. The Trial Court dismissed the suit holding that the suit is barred by res judicata and constructive res judicata in view of O.S.No.395/1983 instituted by the second defendant. 11. This Court had earlier allowed this Appeal in part as per judgment dated 28.10.2021 remanding the matter back to the Trial Court for fresh consideration finding that the decree in O.S.No.395/1983 which became final and conclusive was in respect of 2.18 Acres scheduled therein as item Nos.1 to 6, whereas, the subject matter of the present suit is 4.57 Acres of land included in 12 items in the plaint A schedule and hence there cannot be any res judicata with respect to item Nos.7 to 12 scheduled in the plaint. 12. The 11 th defendant filed Special Leave Petition before the Hon’ble Supreme Court and in Civil Appeal No.2122/2024, the Hon’ble Supreme Court set aside the judgment of this Court and remanded the matter back to this Court to decide the matter on all issues finding that this Court could have decided the matter itself as this Court had all the powers to do that and that remand should not be made as a matter of routine. It is also observed that the learned counsel for the appellant would be at liberty to place additional evidence before the High Court. 13. After remand from the Hon’ble Supreme Court, the 10 th respondent/11 th defendant filed I.A.No.2/2024 producing 6 documents as Annexure R10 (a) to (f) which are certified copies of certain deeds, with a prayer to accept those documents as additional evidence in this Appeal under Order 41 Rule 27 CPC. The respondents 1 to 9 in the said I.A. filed Counter Affidavit to I.A.No.2/2024. In the said petition, the 11 th defendant claims that six items, which are not included in the earlier O.S.No.395/1983, which are item Nos.5, 7 and 9 to 12 in the present suit were owned by his father - the second defendant or his mother, late Sarojini Amma. It is stated that certified copy of the Title document with respect to item Nos.5 & 7 in the plaint schedule is yet to be received. It is stated that certified copy of the Title document with respect to item Nos.5 & 7 in the plaint schedule is yet to be received. It is stated that the said documents will be produced at the earliest when they are made available by the authorities. Even the numbers of the title documents with respect to item Nos.5 & 7 are not stated by the 10 th respondent. The 10 th respondent claims that item Nos.10 & 11 were owned by his father as per Document No.441/1961 of SRO Kuzhalmannam which is produced as Annexure R10(a). He claims that his father settled item No.10 property as per Document Nos.2097/2003 and 1434/2002 of SRO Kuzhalmannam as per Annexure R10(b) & (c). He claims that item No.11 was settled in favour of him by his father as per Document No.355/2003 of SRO Kuzhalmannam as per Annexure R10(d). He claims that Item No.12 belonged to his mother as per Document No.1580/1958 of SRO Palakkad, which is produced as Annexure R10(e). He claims that the said property was settled in his favour by his mother as per Document No.2308/1995 of SRO Kuzhalmannam as per Annexure R10(f). In the affidavit, the averment is to the effect that the said documents are vital and material for the proper adjudication of the lis and for arriving at a just conclusion and it was a bona fide mistake on his part not to have produced the documents despite due diligence. 14. I heard the learned counsel for the appellants/ plaintiff Nos.3 & 4, Sri. C. Chandrasekharan and the learned counsel for the 10 th respondent/ 11 th defendant, Sri. Vinod Bhat. 15. The learned counsel for the appellants contended that only six items out of the 12 items were included in the earlier suit. There could not be any res judicata with respect to the remaining items. There is specific finding in Ext.B3 judgment of the Division Bench of this Court in A.F.A.No.37/2002 that the school properties are Thavazhi properties. There is nothing in evidence to prove that the plaint schedule properties are the self-acquired properties of the 2 nd defendant. The 11 th defendant claimed right over the plaint schedule properties by a Will executed by the 2 nd defendant. No such Will was produced before the Trial Court. Along with I.A. No.2/2024, the 11 th defendant has produced six documents. The 11 th defendant claimed right over the plaint schedule properties by a Will executed by the 2 nd defendant. No such Will was produced before the Trial Court. Along with I.A. No.2/2024, the 11 th defendant has produced six documents. Neither the 2 nd defendant nor the 11 th defendant has claimed any right on the strength of these documents before the Trial Court. The 11 th defendant has not made out any case for admission of those documents as additional evidence in this appeal under Order 41 Rule 27 CPC. Even going by the averments in I.A.No.2/2024, the defendants do not know as to how he claims right over Items Nos.5 and 7. I.A.No.2/2024 is liable to be dismissed. The appeal is liable to be allowed, ordering partition of plaint A schedule Item Nos.5,7 & 9 to 12, which were not included in the earlier O.S No.395/1983. 16. On the other hand, the Counsel for the 10 th respondent/11 th defendant contended that, at present, there is no quarrel with respect to Item Nos.1 to 4, 6 & 8 in the Plaint A schedule, which are included in the earlier suit O.S.No.395/1983. The remaining Item Nos.5,7 & 9 to 12 in the Plaint A schedule, except Item No.9, belonged to the original second defendant/mother of the 11 th defendant as per the old documents. Item No.9 belongs to the 7 th defendant. The 11 th defendant could find out the title of Item Nos.10,11 and 12, obtained certified copies of the same and produced the same along with I.A.No.2/2024. Title documents of Item Nos. 5 & 7 are yet to be found. The documents produced along with I.A.No.2/2024 would prove that Item Nos.10 and 11 are the self-acquired properties of the second defendant and Item No.12 is the property of the mother of the 11 th defendant. Those documents are essential to decide the controversy involved in this appeal. I.A. No.2/2024 is liable to be allowed and the appeal is liable to be dismissed, finding that the plaint schedule properties are not available for partition as they are not Thavazhi properties. 17. I have considered the rival contentions. 18. Going by the arguments addressed before me, the appellants are claiming partition of Item Nos.5,7 & 9 to 12 in the Plaint A schedule in this appeal. 17. I have considered the rival contentions. 18. Going by the arguments addressed before me, the appellants are claiming partition of Item Nos.5,7 & 9 to 12 in the Plaint A schedule in this appeal. Even according to the contesting 11 th defendant, Item No.9 belongs to the 7 th defendant. The 11 th defendant does not claim any right over Item No.9. The 7 th defendant has not raised any claim on Item No.9. Hence, I find that there is no dispute with respect to the partibility of Item No.9. Hence the partibility of Item Nos.5,7 & 10 to 12 in the Plaint A schedule alone is the issue to be considered. 19. In view of the contentions advanced before me, the following points arise for determination in this appeal. 1. Whether the documents produced along with I.A.No.2/2024 are liable to be considered in this Appeal, accepting it as additional evidence? 2. Whether Item Nos.5,7 & 10 to 12 in the Plaint A schedule are Thavazhi properties available for partition or the self-acquired properties of the second defendant? 3. If Item Nos.5,7 & 10 to 12 in the Plaint A schedule are available for partition, what are the shares entitled to the parties to the suit? POINT NO.1 20. When the Appellate Court receives an application to accept additional evidence under Order 47 Rule 27 CPC, the same is to be considered and disposed of along with the appeal. Only if the Appellate Court decides to accept the documents produced as additional evidence marking the same in evidence, the Appellate Court is liable to consider those documents while disposing the appeal. The 10 th respondent has filed I.A.No.2/2024 to accept certified copies of six registered documents in evidence on04.11.2024, subsequent to the remand of the case from the Hon’ble Supreme Court as per Order dated 12.02.2024. In the remand order, the Hon’ble Supreme Court has given liberty to the 10 th respondent to place additional evidence before the High Court. When additional evidence are placed before this Court, it is for this Court to consider whether it is liable to accepted in evidence under Order 41 Rule 27 CPC. The question is whether the 11 th defendant has satisfied the conditions for accepting the additional evidence as required under Order 41 Rule 27 CPC. When additional evidence are placed before this Court, it is for this Court to consider whether it is liable to accepted in evidence under Order 41 Rule 27 CPC. The question is whether the 11 th defendant has satisfied the conditions for accepting the additional evidence as required under Order 41 Rule 27 CPC. The averments in I.A.No.2/2024 are that the said documents are vital and material for proper adjudication of the lis and for arriving at the just conclusion and that it was a bona fide mistake on his part not to produce the documents despite due diligence. I am of the view that the said averments are quite insufficient to accept the additional evidence. The 11 th defendant has not stated the due diligence undertaken by him to produce the said documents before the Trial Court and his inability to produce the same. The suit is of the year 1988. The previous suit O.S.No.395/1983 with respect to part of the plaint schedule properties started in the year 1983. During the pendency of the suit, the present suit is filed. The parties were well aware of the contentions since the year 1983. Neither the original 2 nd defendant nor the 11 th defendant, who is one of the legal heirs of the original second defendant, attempted to produce any document to prove their contention that the plaint schedule properties are the self-acquired properties of the second defendant. No pleading was made with reference to those documents. There is no pleading that the plaint schedule Item no.12 belonged to the mother of the 11 th defendant. It is quite unbelievable that they were not aware of the title deeds of the properties in which the school conducted by them is situated. The suit was disposed of only on 22.02.2014. They had enough time to procure and produce the relevant documents before the Trial Court. Even before this Court, the 11 th defendant thought of producing the above documents only after remand from the Hon’ble Supreme Court in the year 2024. Even now, the 11 th defendant is in search of the title deeds of Item Nos. 5 and 7. If these documents are accepted in evidence, the matter will have to be remanded to the Trial Court to test these documents in trial. Even now, the 11 th defendant is in search of the title deeds of Item Nos. 5 and 7. If these documents are accepted in evidence, the matter will have to be remanded to the Trial Court to test these documents in trial. In the remand order, the Hon’ble Supreme Court has clearly observed that this Court could have decided the matter itself as it had all the powers to do that and that remand should not be made as a matter of routine, as it seems to have been done in this case. This Court is specifically directed to decide the first appeal on all the issues. In view of the aforesaid observations of the Hon’ble Court, I am of the view that remand should not be made in this suit of the year 1988 to enable the 11 th defendant to prove his contention in the Trial with the aid of the additional documents produced along with I.A.No.2/2024 when it is proved before this Court that there is clear laches and negligence on the part of the second defendant and the 11 th defendant to produce the additional documents which they claim as relevant documents. Another thing is that nothing is pleaded about these additional documents either in the Written Statement of the second defendant or in the Written Statement of the 11 th defendant. The 11 th defendant stated in his Written Statement that as per the Will executed by the second defendant, properties covered by Document Nos.34/1957, 317/1955, 79/1955, 78/1955, 80/1955, 376/1958 and 1460/1995 together with the buildings therein and managership of the school therein are vested with the 11 th defendant. The additional documents sought to be accepted in evidence do not find a place in the above list. Though the 11 th defendant claimed right over the school properties as per a Will executed by the second defendant, no such Will is produced. The date or number of such a Will is not even pleaded. The additional documents now produced are beyond the pleadings and run counter to the pleadings of the 11 th defendant in his Written Statement. On account of these reasons, I have dismissed I.A.No.2/2024 by separate order and hence the additional documents produced along with I.A.No.2/2024 are not liable to be considered in this Appeal. POINT NO.2 21. The present suit was instituted before the disposal of O.S.No.395/1983. On account of these reasons, I have dismissed I.A.No.2/2024 by separate order and hence the additional documents produced along with I.A.No.2/2024 are not liable to be considered in this Appeal. POINT NO.2 21. The present suit was instituted before the disposal of O.S.No.395/1983. O.S.No.395/1983 was filed by the second defendant herein to enforce clause No.14 in the Partition Deed of the year 1958 to compel the other members of Thavazhi, who were the defendants in the said suit, to execute release deeds in favour of the second defendant herein with respect to the school property. O.S.No.395/1983 was decreed as per judgment dated 16.10.1989. In the said case, the second defendant herein, as plaintiff therein, included six items of property in which the school is situated. The second defendant claimed that those items belonged to him. The defendants therein contended that six more items are part of the school property and the same were left out in the plaint schedule. They included those items in their Written Statement. The Trial Court in Ext.B1 judgment in O.S.No.395/1983 specifically held that when Ext.A1 therein (Partition Deed of 1958) was executed, the school was really the asset of the Thavazhi notwithstanding Exts.A2 to A6 in the name of the plaintiff therein and that the school did not retain the character of Thavazhi property after the execution of Ext.A1 Partition Deed therein. It is also found that after 1958, Thavazhi as such no longer exists. Ultimately decree was granted in favour of the plaintiff therein in view of Clause 14 in Ext.A1 Partition Deed therein directing the plaintiff therein to deposit Rs.41,202/- towards the interest of the defendants over the plaint schedule properties and school building and other items within three months and directing the defendants therein to execute release deeds releasing all their interest over the said properties to the plaintiff on deposit of the said amount. Ext.B1 was confirmed by the Single Judge of this Court in Ext.B4 and further confirmed by the Division Bench of this Court in Ext.B3. 22. The question to be considered is the status of Item Nos.5,7 & 10 to 12 in the Plaint A schedule with reference to the Partition Deed of 1958. Neither side has produced the Partition Deed of the year1958. 22. The question to be considered is the status of Item Nos.5,7 & 10 to 12 in the Plaint A schedule with reference to the Partition Deed of 1958. Neither side has produced the Partition Deed of the year1958. From Ext.B1 Judgment in O.S No.395/1983, Ext.B4 judgment in A.S.No.170/1990 and Ext.B3 judgment in A.F.A No.37/2002, it is clear that the school property was kept common and was not partitioned in the Partition Deed of 1958. The Division Bench of this Court in Ext.B3 has specifically found that the school property was a Thavazhi property and that the members of Thavazhi are tenants in common from the date of the Partition Deed of 1958 in relation to the suit property therein. Going by the description in the plaint, Item Nos.5,7 & 10 to 12 in the Plaint A schedule are part of school properties. The second defendant herein filed O.S No.395/1983 to enforce Clause 14 of the Partition Deed by getting release deeds from other members only with respect to six items of properties which are Item Nos.1 to 4, 6 and 8 herein. With respect to the remaining item Nos.5,7 & 9 to 12 in the Plaint A schedule, the second defendant did not seek enforcement of clause 14 of the Partition Deed of 1958. Those properties continued to be held by the members of the Thavazhi as tenants in common. They are liable to be partitioned among the plaintiffs and the defendants who are the members of the Thavazhi. Hence, I hold that Item Nos.5,7 & 9 to 12 in the Plaint A schedule are available for partition among the members of the Thavazhi of the1 st defendant. POINT NO.3 23. It is not in dispute that the plaintiffs 1 to 6 and defendants 1 to 8 are the members of the Thavazhi of the 1 st defendant. Each of the plaintiffs and defendants 1 to 8 is entitled to get 1/14 share in the Item Nos.5,7 & 9 to 12 in the Plaint A schedule. Since the second defendant has died, his share is to be allotted to the defendants 9 to 11 jointly. Since the third defendant has died, his share is to be allotted to the defendants 12 &13 jointly. It is seen that the court fee is paid only by the plaintiffs, they alone are entitled to get separate share. 24. Since the second defendant has died, his share is to be allotted to the defendants 9 to 11 jointly. Since the third defendant has died, his share is to be allotted to the defendants 12 &13 jointly. It is seen that the court fee is paid only by the plaintiffs, they alone are entitled to get separate share. 24. In view of the aforesaid discussion, this Appeal is allowed, setting aside the judgment and decree of the Trial Court and decreeing the suit in part, passing a Preliminary Decree for Partition as follows. 1. Item Nos.5,7 & 9 to 12 in the Plaint A schedule are liable to be partitioned in 14 shares allotting separate possession of 1/14 shares to each of the six plaintiffs and allotting 8/14 shares jointly to the defendants 1 & 4 to 12, in which the defendants 1 & 4 to 8 will have 1/14 shares each, the defendants 9 to 11 together will have 1/14 share and the defendants 12 & 13 together will have 1/14 share. 2. The parties are allowed to apply for a final decree in accordance with the Preliminary Decree. 3. The cost of the suit shall come out of the estate. 4. The suit is adjourned sine die.