A partition suit should not be dismissed solely for non-joinder of necessary parties, and opportunity should be given to implead the necessary parties to avoid multiplicity of proceedings.

This second appeal is focused by the plaintiffs, animadverting upon the judgment and decree dated 05.07.2006 passed by the Principal District Judge, Erode, in A.S. No. 92 of 2005, reversing the judgment and decree dated 111. 2005 passed by the Subordinate Judge, Bhavani, in O.S. No. 9 of 2003. For the sake of convenience, the parties are referred to hereunder according to their litigative status before the trial Court.

2. A summation and summarization of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:

The appellants/plaintiffs filed the suit O.S. No. 9 of 2003 as against the defendant, seeking the following relief:

"To pass a preliminary decree to dividing the suit property into 2 equal share and allot one half to the plaintiffs with reference to good and bad soil by metes and bounds and put the plaintiffs in separate possession over the same."

(extracted as such)

The defendant entered appearance and filed the written statement resisting the suit.

3. The trial Court framed the relevant issues. During trial, the second plaintiff examined himself as P.W.1 along with one Eswaran as P.W.2 and Exs. A1 and A4 were marked. The defendant examined himself as D.W.1 and Ex. B1 to B.14 were marked.

4. Ultimately, the trial Court decreed the suit, as against it, the defendant preferred the appeal A.S. No. 92 of 2005, which was allowed by the first appellate Court, by setting aside the judgment and decree of the trial Court and dismissing the original suit.

5. Being disconcerted and aggrieved by the said judgment and decree of the first appellate Court, the plaintiffs filed this second appeal on various grounds and also suggesting some substantial questions of law.

6. After hearing for some time the arguments on both sides, this Court felt that on the consent of both sides, this matter could be disposed of finally by framing the following substantial questions of law:

"1. Whether the suit was not maintainable as per order 9 Rule 9 of CPC, in view of previous suit filed by the plaintiff having been dismissed for default?

2. Whether the suit is bad for non-joinder of admitted co-sharers even as per plaintiff in the suit?

3. Whether ignoring the oral and the documentary evidence, the First Appellate Court decided that the suit property is not an ancestral property and that the settlement deed, Ex. B4 executed was valid?

4. Whether the suit was bad for non framing of an issue relating to ouster?"

7. A bare poring over and perusal of the typed set of papers, including the judgments of both the Courts below and also consideration of the arguments of both sides, would display and demonstrate that the appellants in the Second Appeal, namely, Balamani and Murugesan, so to say, the mother and son filed the suit for partition and for allotment of half share, representing the share of the deceased Shanmugam, who happened to be the husband of the first plaintiff and father of the second plaintiff. The said Shanmugam and the defendant are the sons of Subramania Chettiar; after the death of Subramania Chettiar, the properties devolved upon his two sons and hence the suit for half share of deceased Shanmugam.

8. Remonstrating and refuting the plaint averments, the defendant filed the written statement, the gist and kernel, the pith and marrow of it would be that the suit was bad for non-joinder of necessary parties, as said Late Subramania Chettiar had two wives and through his first wife, he had two sons and through his second wife alone the said Shanmugam and the defendant were born and they have a sister also; however the suit property is not the ancestral property at the hands of Subramania Chettiar, but it was his self acquired property, whereupon he executed the settlement deed, Ex. B4 dated 211. 1967 in favour of the defendant; the defendant also alternatively acquired prescriptive title over the suit property by ouster by virtue of his long enjoyment; the earlier sui