1. A.S.No.249 of 2007 is focussed by the first defendant and A.S.No.420 of 2007 is focussed by the plaintiff, as against the judgment and decree dated 31.07.2006 passed in O.S.No.2074 of 1996, which was one for partition, on the file of the II Additional Judge, City Civil Court, Chennai.

2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

3. A recounting and recapitulation of the relevant facts absolutely necessary and germane for the disposal of these two appeals would run thus:

(i) The plaintiff - Radhakrishnan filed the suit for partition with the following prayers:

"(a) For partition and separate possession of his 66/280 share in the suit property

(b) On the defendants failing to do so, the Court itself by appointing an Advocate Commissioner to divide the suit property by metes and bounds and allot the plaintiff's 66/280 share and to deliver possession of the same and pass a final decree in terms thereof." (extracted as such)

(ii) The suit property comprised of five items of lands bearing Survey Nos.53, 40, 51 and 54/2, measuring an extent of 0.50 cents, 0.79 cents, 3.35 cents and 0.35 cents respectively and 0.9 cents on the southern side of Survey No.64, totally measuring an extent of 2.16 acres.

(iii) D1 filed the written statement contending that the suit was bad for partial partition, in view of the fact that the following properties were left out:

"........ 28 cents in S.No.58, 9 cents in S.No.64, 8 cents in S.No.43/2, 4 cents in S.No.46/2, 13 cents in S.No.48, 11 cents in S.No.50 and 13 cents in S.No.238/2, totalling to 86 cents."

(iv) The plaintiff also filed reply statement to the contention raised by D1 as under:

"Land measuring 9 cents in S.No.64 is already included in this suit. The other lands namely 8 cents in S.No.43/1, 4 cents in S.No.46/2, 13 cents in S.No.48 and 11 cents in S.No.50 were kept as common as they did not exclusively belong to the family of Murukesa Mudaliar. These properties were kept common for the bigger joint family consisting of Murukesa Mudaliar and his heirs, Deiva Sigamani Mudaliar, Subramania Mudaliar, Arumuga Mudaliar & Vedantam Mudaliar and therefore the said properties cannot be divided."

(v) D2 filed the written statement admitting the claim of the plaintiff. Pendente lite D2 died and D2 is represented by his legal heirs, namely D12 to D15 and they fall in line with the plaintiff; D3 remained absent and set ex parte; D4 filed a separate written statement. Even though D5, D7 and D8 filed written statements, they did not participate in the trial. D6 filed memo adopting the written statement of D8.

(vi) The trial Court, framed the relevant issues.

(vii) During trial, the plaintiff-Radhakrishnan examined himself as P.W.1 and Exs.A1 to A24 were marked. The first defendant-Balasubramanian examined himself as D.W.1 and no document was exhibited on the defendants' side.

(v) Ultimately the trial Court decreed the suit granting the following reliefs:

"In the result preliminary decree is passed in favour of the plaintiff, D1, D2 and D5 declaring that the plaintiff, D1, D2 are entitled to 37/168 share and D5 is entitled to 9/168 share."

(extracted as such)

4. Being aggrieved by and dissatisfied with the judgment and the preliminary decree of the trial Court, the two appeals emerged. The plaintiff-Radhakrishnan filed A.S.No.420 of 2007; whereas, D1-Balasubramanian filed the separate appeal in A.S.No.249 of 2007.

5. Keeping in mind the limited scope of both the appeals and the arguments advanced thereon, only the germane facts necessary for the effective adjudication, are narrated thus.

6. The indubitable and indisputable or atleast the undeniable facts would run thus:

One Singaravelu had five sons namely (1) Deivasigamani, (2) Subramania, (3) Arumugha, (4) Murugesa and (5) Vedantham. Sampoornammal happened to be the wife of the said Murugesa. During the year 1951, the said Murugesa died leaving behind his lega