The main legal point established in the judgment is the importance of following the proper procedure under Order XLI Rule 27 CPC for allowing additional evidence in the appellate stage.

1. This second appeal has been filed against the judgment and decree of the learned Subordinate Judge, Tindivanam dated 10.09.2009 made in A.S.No.32/1995 on the file of the Sub Court, Tindivanam. Palani, the first respondent in the second appeal filed the suit O.S.No.607/1989 on the file of the Court of District Munsif, Tindivanam for partition, separate possession and for mesne profits against 1) Thirumal, 2) Rasu and 3) Jayamoorthy (the first appellant in the second appeal) ranking them as defendants 1 to 3 respectively. The suit was dismissed with cost by the trial court by its judgment and decree dated 31.03.1995. As against the same, the plaintiff Palani (first respondent in the second appeal) filed A.S.No.32/1995 on the file of the Sub Court, Tindivanam. The learned Additional Subordinate Judge, Tindivanam by the impugned judgment and decree dated 10.09.2009 allowed the appeal, set aside the decree of the trial court dismissing the suit and granted a preliminary decree for partition holding that the plaintiff was entitled to 1/3 share in the suit properties and directing division of the suit property in to three equal shares and allotment of one such share to the plaintiff/first respondent in the second appeal. The learned Additional Subordinate Judge, Tindivanam relegated the decision regarding mesne profits to a separate enquiry to be conducted on an application to be filed for the said purpose.

2. During the pendency of the first appeal before the lower appellate court, Kaliammal and Kalyani (the appellant 2 and 3 in the second appeal), one Alamelu and the respondents 2 to 7 in the appeal were impleaded as respondents 4 to 12 in the first appeal before the lower appellate court. Now the first appellant in the second appeal (3rd defendant) and the appellants 2 and 3 in the second appeal (respondents 4 and 5 in the first appeal) have filed the present second appeal challenging the decree of the lower appellate court dated 10.09.2009 made in the above said appeal suit A.S.No.32 of 1995.

3. Palani, the first respondent herein filed the suit making the following averments in the plaint:

The properties described in the plaint schedule are the properties of Hindu Mitakshara coparcenary consisting of the plaintiff Palani, first defendant Thirumal and the second defendant Rasu. Thirumal had got two wives and the second defendant Rasu is his son born through the first wife, whereas the plaintiff is his son born through his junior wife. The third defendant Jayamoorthy (the first appellant in the second appeal) is the son of the second defendant Rasu. The plaintiff and defendants 1 and 2 being the coparceners of the Hindu Mitakshara undivided family, the plaintiff is entitled to 1/3 share in the suit properties as a coparcener. Taking advantage of the fact that the plaintiff is a junior member of the family, the defendants 1 and 2 attempted to encumber the suit properties and the plaintiff asked them not to do so. Disregarding the said request of the plaintiff, the defendants 1 to 3 chose to get patta in their names. Such an issue of patta in the names of defendants 1 to 3 shall not defeat the rights of the plaintiff in respect of the suit property. While so, it was brought to the notice of the plaintiff in the month of June 1989 that the defendants 1 to 3 had changed the patta regarding the suit properties in their names suppressing the fact that the plaintiff has got a right to share in them. Such a patta obtained by them shall not defeat the rights of the plaintiff. However the suit properties are in the joint possession of the plaintiff and defendants 1 to 3. In view of the hostile attitude of the defendants in getting patta for the suit properties in the name of the third defendant Jayamoorthy (first appellant in the second appeal) as a result of collusion among the defendants 1 to 3, it became no longer feasible to continue the joint possession and enjoyment and hence the plaintiff has been driven to file a suit f