JUDGMENT : C. PRATHEEP KUMAR, J. 1. The plaintiffs 1 to 4 in OS No.232/2006 on the file of Sub Court Ernakulam are the appellants in RFA.332 of 2010. The plaintiff in OS No.193/2008 on the file of the Sub Court, Ernakulam is the appellant in RFA. No.721/2010. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court in OS No.232/2006). 2. OS. No.232/2006 is a suit for partition while OS. No.193/2008 is a suit for injunction. The 1st plaintiff is the widow and the plaintiffs 2 to 5 and defendants 1 and 2 are the children of late C.P. Mathew. Defendants 3 to 5 are the widow and children of late Patric Mathew @ Freddie, the predeceased son of late C.P. Mathew. 3. Admittedly, late C.P. Mathew died intestate on 29.9.2017. Since the properties left behind by Late C.P. Mathew were not partitioned among the sharers, the plaintiffs 1 and 3 to 5 filed a suit as O.S. No.193/2008 before the Sub Court, Ernakulam against the defendants therein. 4. In the written statement filed by the defendants they have taken a contention that late C.P .Mathew had executed a Will and therefore, the schedule properties are not partible. The trial court upheld the contentions taken by the defendants and dismissed the suit. While so, mediators intervened, discussions were held at the instance of Sri. John of Matha and as a result of which the plaintiffs and defendants came to a family arrangement and executed a family settlement agreement dated 13.12.2003 in respect of two items of properties which are scheduled in OS. No.232/2006. 5. According to the plaintiffs, as per the terms of family settlement agreement, the properties were measured out and divided among the sharers and draft partition deed was also prepared and copy of the same was handed over to the defendants. However, the 3 rd defendant delayed approval of the draft deed on one -pretext or another and began to commit mischief on the property sought to be given to the 2 nd plaintiff. Consequently, the 2 nd plaintiff filed a suit as OS. No.409/2006 before the Munsiff's Court, Ernakulam seeking prohibitory injunction against the 3 rd defendant herein. In the partition suit, some properties which were kept in common, which is not the subject matter in the family settlement was not included in the suit. Consequently, the 2 nd plaintiff filed a suit as OS. No.409/2006 before the Munsiff's Court, Ernakulam seeking prohibitory injunction against the 3 rd defendant herein. In the partition suit, some properties which were kept in common, which is not the subject matter in the family settlement was not included in the suit. It is prayed that the plaint schedule item No.1 is to be divided among the plaintiffs 2 to 5 and defendants 3 to 5 alone and item No.2 is to be divided among the plaintiffs 1 and 2 and all the defendants. 6. Defendants 1 and 2 in OS. No.232 of 2006 remained ex-partie. On behalf of defendants 3 to 5, the 3 rd defendant filed a written statement contending that the suit is not maintainable. According to the defendants, an earlier suit for partition filed by the plaintiffs was dismissed and as such the present suit for partition is not maintainable, as it is barred by res judicata. It is also contended in the written statement that the agreement dated 13.12.2003 is unenforceable as it is not supported by consideration. It is also contended in the written statement that all the properties commonly owned by the plaintiffs and defendants are not included in the suit and hence the suit is bad for partial partition. It is also alleged the agreement dated 13.12.2003 appears to have been tampered with and fabricated with. According to the defendants, no draft deed was prepared or handed over to the 3 rd defendant. 7. In O.S. No.193/2008, it was alleged that the 3 rd defendant is obstructing the 2 nd defendant from doing any works in the schedule properties and also attempting to commit mischief therein. Therefore, the 2 nd plaintiff prayed for a permanent prohibitory injunction against the 3 rd defendant from obstructing him from doing works in the schedule property and from committing mischief to the said property. However, in the written statement, the 3 rd defendant contended that in the schedule property, the 2 nd plaintiff has no special right or claims and that both are having equal rights in the said property. Though defendants admitted the agreement dated 13.12.2003, it was contended that it cannot be enforced due to partial partition and also that the plaintiff had delayed in getting the deed executed. Though defendants admitted the agreement dated 13.12.2003, it was contended that it cannot be enforced due to partial partition and also that the plaintiff had delayed in getting the deed executed. The defendants further contended that it was the plaintiff himself, who had committed mischief in the schedule property. 8. Since the contesting parties and the subject matter in dispute are common, the trial court tried both the suits jointly and disposed of the same as per common judgment dated 10.4.20008. The trial court framed necessary issues in both the suits. The evidence in the case consists of oral testimonies of PWs 1 to 4, Exhibits A1 to A5, C1 and C1(a). No evidence was adduced by the defendants. After evaluating the evidence on record, the trial court dismissed both the suits. Aggrieved by the above judgment and decree of the trial court, the plaintiffs in the suits preferred these appeals. 9. Now, the points that arises for consideration are the following: 1) Whether Exhibit A1 is the family settlement arrived at between the plaintiffs and the defendants? 2) Whether the plaintiffs are entitled to partition the plaint schedule properties on the basis of Exhibit A1 family settlement? 3) Whether the 2 nd plaintiff is entitled to get a permanent prohibitory injunction against the 3 rd defendant as prayed for? 4) Whether the impugned judgment and decree of the trial court calls for any interference in the light of the grounds raised in these appeals? 10. Heard Sri. Dinesh R. Shenoy, learned counsel for the appellants and Smt. Monisha K.R. the learned counsel for the defendants 3 to 5. 11. The points: The earlier suit filed by the plaintiffs for partition was dismissed by the trial court on the ground that deceased C.P. Mathew had executed a will. In the above circumstances, in the written statement, defendants 3 to 5 raised a contention that the present suit is barred by limitation. However, the trial court found that the present suit is for enforcement of a family settlement and as such the present suit is not barred by res-judicata. The above finding of the trial court was not challenged at the time of arguments. Therefore, it is to be held that the suit is not barred by res-judicata. 12. In these suits, the plaintiffs are attempting to enforce a family settlement, which was entered into between the plaintiffs and the defendants. The above finding of the trial court was not challenged at the time of arguments. Therefore, it is to be held that the suit is not barred by res-judicata. 12. In these suits, the plaintiffs are attempting to enforce a family settlement, which was entered into between the plaintiffs and the defendants. Late C.P. Mathew and the1 st plaintiff have three daughters and four sons. The only contesting defendants are defendants 3 to 5, who are the widow and minor children of late Patric Mathew, one of the sons of C.P. Mathew. The plaintiffs 2 to 5 and defendants 1 and 2 are the other children of C.P Mathew and the 1 st plaintiff. They have no dispute with regard to the relief sought for in these suits. Even defendants 3 to 5 admits the existence of a family settlement formed on 13.12.2003. Therefore, it can be seen that all the parties to both these suits admit that in super-session of the decree in OS.210/2001 of Sub Court, Ernakulam, a mediator Sri. John of Matha (PW3) intervened, discussed with all the parties and they entered into a family settlement and the same had been reduced into writing and signed by all the parties on 13.10.2003. According to the plaintiffs, Exhibit A1 is the said family settlement. Defendants 3 to 5 would contend that Exhibit A1 is not the family settlement entered into between them. The defendants 1 and 2 remained ex-parte. Therefore, now the question to be considered is, whether Exhibit A1 is the family settlement entered into between the parties on 13.12.2003. 13. The main reason given by the trial court for dismissing the suit is that the original of Exhibit A1 was not produced before the court. The plaintiffs also admits that Exhibit A1 is not the exact original signed by all the parties. However, according to them, while preparing the family settlement, more than one copies were prepared and in all the copies, parties signed and Exhibit A1 is one such document. Therefore, according to the learned counsel for the appellant, Exhibit A1 is to be treated as the original itself, because it also contain the original signatures of the parties. Exhibit A1 has three pages. In the last page, the signatures of all the parties are there, but in the second page, the signature of the mediator namely; PW3, alone is there. Exhibit A1 has three pages. In the last page, the signatures of all the parties are there, but in the second page, the signature of the mediator namely; PW3, alone is there. In the 1 st page, the signatures of two parties is there. According to the learned counsel, after preparing the family settlement, the copies were distributed to the parties for affixing their signatures and that all the parties have signed only on the last page and only some of the parties signed in the 1 st page. The case of the plaintiffs is that the original containing the signatures of all the parties in all the pages was with the mediator namely, PW3. At the time of evidence, the plaintiffs examined PW3, the mediator Sri. John of Matha. He deposed that the original of Exhibit A1 was in his possession and about one week before the date of his examination, the 3 rd defendant contacted him and he had handed-over the original of Exhibit A1 to the 3 rd defendant through one of the staffs in the medical store conducted by her. However, the 3 rd defendant, denied the receipt of original of Exhibit A1. 14. However, it is interesting to note that the 3 rd defendant, who is representing her minor children-defendants 4 and 5, has not entered the witness box to swear their case on oath and to offer herself to be cross examined by the other side. Therefore, the learned counsel for the appellants would argue that non-examination of the 3 rd defendant as a witness is very much fatal to the case set up by defendants 3 to 5 and as such adverse inference is liable to be drawn against them. The learned counsel has also relied upon the decision of the Hon'ble Supreme court in Maturi Pullaiah and Another v. Maturi Narasimham and others, 1966 KHC 714, in support of his above argument. 15. The law is well settled that if a party does not enter the witness box to swear his case on oath and to offer himself to be cross examined by the opposite party, an adverse inference is liable to be drawn against that party to the effect that the case set by that party in their pleadings is not correct and also that the case of the opposite party is the probable one. 16. 16. In this case, on behalf of the plaintiffs in both the suits four witnesses were examined as PWs 1 to 4 and they have produced and marked Exhibits A1 to A5 in support of their case. However, on the side of the defendants, no oral or documentary evidence was adduced. In the above circumstance, the evidence of PW3, the mediator that he had handed-over the original of Exhibit A1 to the 3 rd defendant through her employee is to be treated as uncontroverted. Since the 3 rd defendant has not entered the witness box to swear her case in tune with the pleading in the written statement, the averments in the written statement filed by them also stands not proved. 17. On the other hand, Mr. Paul Mathew, the 2 nd plaintiff in OS.232/2006 and the sole plaintiff in OS.193/2008, was examined as PW1 and he has adduced evidence in tune with the averments in both the suits. In addition to Exhibit A1, the plaintiffs have produced Exhibits A2 sketch, Exhibit A3 draft partition deed, Exhibit A4 sketch and also Exhibit A5 draft partition deed prepared on the basis of the alleged family settlement agreement. Though the defendants 3 to 5 seriously disputed the genuineness of Exhibit A1, they have not seriously disputed Exhibit A2 to A5, the sketches and draft partition deeds prepared in pursuance to the family settlement, admitted by all the parties. 18. Even with respect to Exhibit A1 challenge made by the defendants 3 to 5 is also very much limited. At one stage, the defendants admit the execution of a valid family settlement on 13.12.2003, at another stage, in the written statement, they contends that the said family settlement is unenforceable as it is not supported by consideration. Another contention raised against the family settlement is that the agreement dated 13.12.2003 does not deal with all the commonly owned properties. Therefore, according to them, the enforcement of the agreement would result in partial partition of jointly owned properties and therefore, it is unenforceable. 19. As argued by the learned counsel for the appellant, after the earlier suit for partition was dismissed, the 1 st plaintiff namely; the widow of C.P Mathew, filed an OP. before the Family Court claiming right over the schedule properties. Further, one of the sons filed another suit for accounts against other sons, in addition to the present suits. 19. As argued by the learned counsel for the appellant, after the earlier suit for partition was dismissed, the 1 st plaintiff namely; the widow of C.P Mathew, filed an OP. before the Family Court claiming right over the schedule properties. Further, one of the sons filed another suit for accounts against other sons, in addition to the present suits. According to the learned counsel, the plaintiffs have not preferred any appeal against the dismissal of the first partition suit only because of the family settlement arrived at with the intervention of the mediator. It is also revealed that PW4, the local Vicar also intervened in the dispute. Since all the parties admits that after the dismissal of the original partition suit, at the intervention of the mediator, mainly PW3, they have decided to resolve their dispute and entered into a family settlement agreement, the decision not to proceed with the filing of appeal and not to proceed with other suits and OP itself is a valid consideration for the family settlement entered into between the parties. Therefore, I do not find any merits in the argument that the family settlement is unenforceable as there is no consideration is not sustainable. 20. The other contention raised by the learned counsel for defendants 3 to 5 is that all the properties available for partition among the parties are not included in the present suit and the present suit is bad for partial partition. However, according to the learned counsel for the appellants, the properties left behind are exclusively meant for the sons and the legal representatives of the deceased son, namely defendants 3 to 5 and those properties could not have been included in the present suit as the plaintiffs herein namely the widow and the daughters of C.P. Mathew have no share from the above properties. 21. In O.S. 232/2006, two items of property alone were included and that is why the defendants contended that non-inclusion of the remaining property amounts to partial partition. As per Exhibit A1, the widow and daughters of C.P. Mathew are entitled to get share only from item No.1 and 2 scheduled in O.S. 232/2006 and the remaining properties are exclusively allotted to the four sons of C.P. Mathew, namely the 2 nd plaintiff, defendants 1 and 2 and the predecessor of defendants 3 to 5. As per Exhibit A1, the widow and daughters of C.P. Mathew are entitled to get share only from item No.1 and 2 scheduled in O.S. 232/2006 and the remaining properties are exclusively allotted to the four sons of C.P. Mathew, namely the 2 nd plaintiff, defendants 1 and 2 and the predecessor of defendants 3 to 5. It is revealed that the property exclusively kept side for the sons includes a quarry having an extent of 3.47 hectares and other garden land having a large extent, in which the widow and daughters have no right as per the family settlement. In the above circumstances, the widow and daughters, who are the main plaintiffs in the present suit, cannot be blamed for leaving apart the remaining property exclusively set apart for the sons. Moreover, as per the family settlement, the 2 nd plaintiff was permitted to conduct the quarry and he was directed to pay premium to the other sons on the basis of the production from the quarry. Since from the remaining properties excluded from O.S. 232/2006, the widow and daughters of C.P. Mathew have no share, as per the family settlement, I hold that the suit is not bad for partial partition. 22. Another argument advanced by defendants 3 to 5 is that in the family settlement, the interest of the minors namely defendants 4 and 5 was not taken care of as the share allotted to them is less than what is allotted to the other sharers. Even as per the family settlement (Exhibit A1) the major share from the properties left behind by C.P. Mathew were allotted to the four sons and only minor share was allotted to the daughters. From Exhibit A2 and A4 sketches, it can be seen that an extent of 19.620 Ares of property from plaint A schedule was allotted to defendants 3 to 5 and another 12.22 Ares of property from plaint B schedule was allotted to defendants 3 to 5. In addition to the same, they are given ¼ share from the quarry having an extent of 3.47 hectares and garden land having an extent of 4.13 Acres. Therefore, when considering the share allotted to the daughters, the share allotted to defendants 3 to 5 cannot be said to be less. In addition to the same, they are given ¼ share from the quarry having an extent of 3.47 hectares and garden land having an extent of 4.13 Acres. Therefore, when considering the share allotted to the daughters, the share allotted to defendants 3 to 5 cannot be said to be less. In this context, it is to be noted that defendants 3 to 5 together are entitled to get ¼ share from the estate of C.P. Mathew. Even if there is any shortage in the extent of property allotted to their share, it was accepted by the 3 rd defendant for and on behalf of herself and her minor children and the shortage in the extent can be treated as in her own share and not in the share of the minors. Moreover, the defendants 4 and 5 have already become majors and so far they have not came forward disputing the validity of the family settlement arrived at between the parties. That means that they have full faith in the 3 rd defendant in the manner in which she is prosecuting the case for and on their behalf. The 3 rd defendant has no case that she had not signed in the family settlement voluntarily or that in the family settlement she could not protect the interest of the minors. Therefore, the contention advanced at the time of arguments that the minors' interest was not protected is devoid of any merits. 23. It is true that the original of Exhibit A1 signed by all the parties is not produced. However, as I have already noted above, with respect to Exhibit A1, no serious challenge was raised by the defendants. In the 3 rd page of Exhibit A1, the original signature of all the parties are present. In the 2 nd page, the signature of the mediator-PW3 was present and in the 1 st page the signature of two of the parties to the family settlement are present. The contention taken in the written statement is that the agreement dated 13.12.2003 appears to have been tampered with and fabricated. She has not disclosed the nature of tampering and fabrication in Exhibit A1. She has not disclosed as to which clause in the original family settlement is absent in Exhibit A1. She also has not disclosed as to which clause in Exhibit A1 is absent in the original family settlement. She has not disclosed the nature of tampering and fabrication in Exhibit A1. She has not disclosed as to which clause in the original family settlement is absent in Exhibit A1. She also has not disclosed as to which clause in Exhibit A1 is absent in the original family settlement. The nature of fabrication, if any and the details of fabrication and tampering in Exhibit A1 from the original are not disclosed. 24. The two specific contentions raised against the family settlement are general in nature and one of them is that it is not supported by consideration and the other is that, it is bad for partial partition. I have already found that the above two contentions are unsustainable as there is valid consideration for formation of the family settlement and also that the suit is not barred for partial partition. No other serious arguments were advanced by the learned counsel for the defendants at the time of arguments, against the validity of Ext.A1. Since the manner in which Exhibit A1 is fabricated and the details of the fabrication in Exhibit A1 are not disclosed, for the mere reason that in Exhibit A1 the signature of all the parties are not present in all the pages, it cannot be treated as a fabricated one. 25. Even at the time of arguments, the learned counsel for the defendants could not point out at any particular clause in Exhibit A1 which is inconsistent with the clauses in the original family settlement or that any clause in Exhibit A1 was not present in the original family settlement. Moreover, I have already noted above, the 3 rd defendant had not entered the witness box to swear her case in tune with the averments in the written statement filed by her. In the above circumstances, there is every reason to believe that Exhibit A1 is a true copy of the original family settlement, containing all the clauses identical to that of the original family settlement. 26. Since in the last page of Exhibit A1, all the parties have affixed their signature, and defendants have no case that the contents in Exhibit A1 are different from that of the original, there is no merits in the contention now advanced to the effect that since the original is not produced, Exhibit A1 cannot be accepted, and the same is liable to be rejected. Exhibit A1 cannot be treated as a secondary evidence as it has come out in evidence that it was prepared along with the original and it also contain the signatures of all the parties at least in one page and as such Exhibit A1 cannot be taken as a mere copy of the original, but it is original in all respects and as such in the facts of this case, Exhibit A1 is liable to be treated as the original family settlement. Moreover, as I have already noted above, from the evidence, it is revealed that the original family settlement was handed over to the 3 rd defendant and in spite of that she had not entered the witness box to deny the above evidence of PW3 and she has also not cared to produce the original of Exhibit A1. Moreover, in the affidavit filed by the 3 rd defendant on 3.4.2006, she admitted execution of the family settlement agreement. The defendants have no case that Exhibit A2 to A4 sketches and draft sale deeds were not prepared in tune with Exhibit A1 family settlement. In the above circumstances, Exhibits A2 to A5 sketches and draft sale deeds are liable to be accepted as prepared in tune with Exhibit A1 family settlement and as such, the suit OS.232/2006 is liable to be decreed in terms of Exhibits A1 to A5. 27. In OS. 193/2008, the plaintiff contends that the 3 rd defendant, in violation of the family settlement, is attempting to interfere with his conduct of the quarry and therefore, he prayed for a decree of permanent prohibitory injunction. The trial court held that the defendants 3 to 5 are also co-owners of the properties scheduled therein and as such the plaintiff therein is not entitled to get any injunction against the co- owners. Since this court finds that Exhibit A1 is a family settlement agreement entered into between the parties resolving the dispute and in pursuance to the same, they have measured and demarcated their respective shares as revealed from Exhibit A2 and A4 sketches and prepared draft partition deeds Exhibit A3 and A5 and taken possession of their respective shares, the trial court was not justified in denying the prayer for permanent prohibitory injunction prayed for in OS.193/2008. In the above circumstances, OS.193/2008 is liable to be decreed to the effect that the plaintiff therein is entitled to get a permanent prohibitory injunction against the defendant therein from interfering with the possession and enjoyment of the property scheduled therein and from committing mischief therein. At the time of argument, the learned counsel for the appellant fairly conceded that he is not pressing the prayer for damages and as such the prayer for damages in OS. 193/2008 is liable to be rejected. Points answered accordingly. 28. In the result, these appeals are allowed. The impugned judgment and decree of the trial court in OS.No.232/2006 dismissing the suit is set aside. OS.No.232/2006 is decreed and a preliminary decree for partition in tune with Exhibit A1 to A5 is passed. Any of the sharers could apply for passing of final decree in tune with Exhibits A1 to A5, before the trial court. The trial court can consider Exhibits A2 to A5 sketches and draft sale deeds during the final decree stage and any corrections/modifications can also be made to them, if found necessary. Equities and reservations, if any, as mentioned in Exhibit A1 can also be considered at the time of passing the final decree. The costs of the proceedings will form part of the estate. 29. In the result, the impugned judgment and decree of the trial court in OS. 193/2008 is set aside and the suit is decreed as follows: The defendant in the suit is restrained by a decree of permanent prohibitory injunction from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property. The prayer for damages is rejected. Considering the close relationship between the parties, both parties are directed to bear their respective costs. 30. It is also made clear that the permanent prohibitory injunction passed in OS. 193/2008 will be subject to the final decree that is to be passed in OS.232/2006. All pending interlocutory applications shall stand dismissed.