The central legal point established is that in a partition suit, the plaintiff must prove their legal entitlement to inherit the property, including joint possession and co-ownership, to be entitled to the relief of partition.

1. The present second appeal has been brought by the unsuccessful plaintiffs seeking interference with the concurrent findings of both the courts below.

2. The brief facts leading to filing the present second appeal is as follows :

The appellants/plaintiffs filed a suit on the file of the learned Subordinate Judge, Nilgiris at Udhagamandalam praying a decree for partition of suit property covered in Survey Nos.251/2A, 251/2B, 251/2C, 251/2D, 251/2E and 251/2F comprising an extent of 23.28acres of lands and also partition of another land covered in Survey Nos.261/1, 261/2, 261/3, 261/4 and 261/5 having an extent of 9.21 acres and to pass judgment and preliminary decree for the land comprised an extent of 11.91 acres to the plaintiffs in S.No.251 situated in Ithalar Village and also judgment and decree to the extent of 4.60acres in S.No. 261 with consequential prayer to appoint a Court commissioner to effect partition and allot the shares to the plaintiffs for which the plaintiff's are entitled in terms of the preliminary decree.

3. The suit prayer was opposed by the defendant by filing a detailed written statement. Though, the defendants have taken several objections, one of the objections is that the plaintiffs/appellants were not in joint possession of the suit property or in any partition thereof. The plaintiffs has not paid the appropriate court fee as per Section 37(1) of the Court fees Act. It was also the case of the defendants/respondents that the plaintiffs/appellants have not placed on record the true facts regarding the devolution of title, ancestry and succession in relation to the suit properties. Therefore, it was pleaded the claim for partition cannot be considered. Under these circumstances, the trial court took up the suit for trial after framing the following issues :

1. Whether the Court fee paid is not correct?

2. Whether the plaintiff's are in joint possession of the suit property?

3. Whether the suit is bad for non-joinder of necessary parties?

4. Whether the plaintiffs are entitled to partition? and

5. To what relief if any the plaintiffs are entitled?

The additional issue framed on 15.03.2004.

6. Whether the newly added defendant Nos.73 to 88 are entitled to any share in the suit property? If so, to what extent?

4. By taking on record, the evidence adduced on both sides, the trial Court finally came to a conclusion that the primary ingredients of ownership and common enjoyment have not been proved by the plaintiffs so as to consider the claim for partition of the suit property in S.Nos.251 and 261, on that basis, the trial Court held that the plaintiffs/appellants are not entitled to any relief in the suit except the relief for declaration of title. Accordingly, the trial court considering the nature of the reliefs raised by the parties, granting liberty to file fresh suit for declaration, refused the relief for partition.

5. Aggrieved by the said judgment and decree passed by the trial Court, the matter was taken up before the first appellate court. The first appellate court after considering the arguments advanced by both sides, including the claim made by the plaintiffs/appellant and the objections placed against the claim of plaintiffs/appellants that the plaintiffs have not proved that they are in joint possession/joint enjoyment of the suit property and further holding that they also miserably failed to prove the actual extent of the suit property, confirmed the findings and conclusion reached by the trial Court and dismissed the appeal. Aggrieved by the concurrent findings of both the courts below, the present second appeal has been filed before this Court.

6. While admitting the second appeal, this court framed the following substantial questions of law for consideration :

a) Whether the Courts below have properly appreciated the law relating to joint possession in a suit for partition, particularly when the property in question is governed by a joint patta?

b) Whether the Co