In a partition suit, a preliminary decree declaring the shares of the parties must be passed before a final decree.

The plaintiff in O.S.No.203 of 1989, on the file of the II Additional Sub Court, Trichirappalli, is the appellant herein.

2. This is a partition suit filed by the plaintiff for partition of his 1/2th share in the properties and for proper accounts of the rents.

3. It is the case of the plaintiff that he and the defendant were doing business in culture diamonds as partners and out of the income earning from the business, the suit property was purchased in the joint names of the plaintiff and the defendant under a sale deed dated 17.11.1974. The partnership was dissolved on 11.08.1986 and the accounts were settled between the partners. After the dissolution, it was mutually agreed between the parties that the plaintiff has to enjoy the western portion and eastern portion shall be enjoyed by the defendant. The stair case is constructed in such a way with a passage in the middle. The parties are collecting rent from the tenants in respect of the portions allotted to them for convenient enjoyment. There is one room in the first floor and that room is in the management of the defendant and it was let out to one 'Super Finance' on a monthly rent of Rs.500/- and the defendant is collecting the rent. The plaintiff is entitled to half share in the rent collected by the defendant. The other room in the first floor was used by their father and after his death, it was broke-open by the defendant and he has the lock and key for that room. As the defendant failed to partition the suit property and give 1/2th share of the plaintiff, despite notice issued by the plaintiff, this suit is filed by the plaintiff for partition.

4. The defendant admitted that the suit property jointly belongs to them and the plaintiff and he is entitled to half share. But he alleged that both of them owned several other properties in common and those properties were not included in the plaint and hence, the suit is bad for partial partition. He also denied the convenient enjoyment of the western portion by the plaintiff and eastern portion by him and also the receipt of Rs.500/- from the tenant in respect of one room in the first floor. He also admits that he and the plaintiff are collecting rents from their respective portions.

5. On the basis of the above pleadings, the learned trial Judge framed the following issues:

1. Whether the suit is bad for partial partition?

2. Whether the plaintiff is entitled to the share as prayed for?

3. Whether the room in occupation of the Super Finance in the first floor belongs to both parties? Whether the defendant is receiving the rents for the same?

4. Whether the plaintiff is entitled for partition and amount as prayed for?

5. To what relief, if any, is the plaintiff is entitled to?

6. On the side of the plaintiff, he examined himself as P.W.1 and marked two documents and on the side of the defendant he examined himself as D.W.1 and marked two documents.

7. The documents marked on both sides are notices and reply notices issued by the parties.

8. The learned Sub Judge tried Issue Nos.2 to 4 and held that as admitted by the parties, the plaintiff is in possession and enjoyment of the western portion and the remaining portion is in enjoyment of the defendant. It is further held by the learned Sub Judge that the defendant has admitted that he is collecting the rents from the tenant 'Super Finance' in respect of one room in the first floor and therefore held that in that room the defendant and the plaintiff are having equal shares.

9. It is further observed by the learned trial Judge that in this case a stair case with a width of 4 feet is situate on the eastern portion. Therefore, the defendant is having 4 feet less in his enjoyment and further held that to compensate the lesser extent of 4 feet, the defendant shall be permitted to use and enjoy the disputed room, the room occupied by the 'Super Finance' in its entirety and entitled to collect rents including the advance by himself. In respect of second floor, the learn