A suit for partition is maintainable even if the plaintiff does not seek cancellation of a partition deed, as long as the plaintiff is entitled to a share in the property.

1. Being dissatisfied with the Judgment and Decree dated 28.04.2009 and made in O.S.No.2055 of 2008, on the file of the learned VI Additional Judge, City Civil Court, Chennai, the defendants 1 to 5 have preferred this appeal after invoking the proviso to Section 96 of the Code of Civil Procedure.

2. The facts, which giving rise to the memorandum of appeal may be summarised as under:

The original legal characters of the parties to the suit may not be changed and be it as it is in the suit.

2.1.The suit is filed by the plaintiff:

(a) for the relief of partition and separate possession of 1/6th share in the suit property and allot such 1/6th share to the plaintiff after dividing the suit property by metes and bounds by appointing an Advocate Commissioner and put the plaintiff in possession of his respective share,

(b) for the consequential permanent injunction restraining the defendants from dealing with the suit property including effecting any form of alienation or encumbrance, and

(c) for passing a final degree in terms of the preliminary degree and for costs.

2.2. One Mr.Thiyagarajan is the father of the plaintiff and husband of the first defendant. The other defendants are the brothers and sisters of the plaintiff. Originally, the suit schedule property was allotted to Mr.Thiyagarajan through a partition deed dated 14.08.1977 executed between his brothers and sisters. The plaintiff's father had permitted him to carry on business in the front portion of suit premises and as such he has been in occupation of that portion. Mr.Thiyagarajan had passed away on 22.07.1986, leaving the plaintiff and the defendants as his legal heirs. The suit property is the ancestral property and hence the plaintiff and the defendants are each entitled to 1/6th share.

2.3. When the matter stood thus, the plaintiff was put to understand that the defendants had executed a deed of partition without his knowledge and consent. The alleged deed of partition will not bind on him as he has not admitted and acknowledged it. The plaintiff has therefore not sought to set aside the deed of partition. Without partitioning the suit property, the defendants have now started to construct and alter the structure of the suit property. Hence, the plaintiff was caused to issue a legal notice to the defendants on 22.02.2008 demanding partition. Though a reply was received from the third defendant, the request of the plaintiff was not heeded.

3.The third defendant had filed a written statement on behalf of other defendant, in which they had contented that the suit is not maintainable in law as the plaintiff has not sought for the cancellation of registered partition deed dated 31.03.2004. The partition deed dated 31.03.2004 was accepted and acted upon and as such the partition which was setup already cannot be reopened. In fact, in the front portion, the first defendant has been carrying on Tea Stall for her livelihood and therefore it is false to state that the plaintiff was permitted by his father to carry on business in the front portion.

4. After the demise of the father Mr.Thiyagarajan, the family members had agreed to divide the properties by way of partition. The plaintiff had also given consent for the partition. Based on his consent, the deed of partition was prepared and given to the plaintiff for his approval. However, the plaintiff had left the city for his personal reason.

5. That on 31.03.2004 the registration of partition deed was fixed. On that day, the plaintiff did not come to the Sub-Registrar's Office. Left with no other option, the said partition deed was registered and the appropriate share was also allotted to the plaintiff. Virtually, the plaintiff is residing in the portion allotted to him under the partition.

6. The suit has been filed belatedly that too after the lapse of four years and hence the suit is hopelessly barred by limitation. Now all the heirs of the deceased G.Thiyagarajan have been occupying and enjoying their respective shares