The main legal point established is that properties mentioned in the written statement, which were previously enjoyed in common, were found to be liable for partition as they were not used for common purposes and were enjoyed in common only on certain occasions.

1. The plaintiff in O.S.No.192 of 1992 on the file of the Subordinate Court, Ariyalur is the appellant. The plaintiff filed the suit for partition of his half share in the plaint Items 1 to 7 and 9 to 13, and 1/3rd share in item 8, and also for mesne profits.

2. The defendants filed counter claim claiming half share in the properties mentioned in the schedule to the written statement and also claimed 2/3rd share in Item 8 and also disputed the description of property in Items 9 to 13. The Trial Court granted preliminary decree granting half share to the plaintiff in Items 1 to 7, 11 to 13 of the plaint schedule and also half share in Items 14 to 29 in the properties mentioned in the schedule to the written statement and also 1/3rd share in Items 8 & 9, and also granted preliminary decree in favour of the defendants 1 to 8 in respect of half share in items 14 to 29 in respect of the properties mentioned in the schedule to the written statement. Aggrieved by the same, this appeal is filed by the plaintiff.

3. The case of the plaintiff is as follows:-

The property was originally owned by Kachchi Chinna Nallappa Kalakka Thozha Udaiyar. His wife was Thairyalakshmi Ayal. He had four sons, namely, Kachchiyuvarangappa Kalakka Thozha Udaiyar, Chinnrajathurai, Plaintiff and Chinnakulandai Raja. The suit properties are the joint family properties of Kachchi Chinna Nallappa Kalakka Thozha Udaiyar and his four sons. In O.S.No.55/53 on the file of the Subordinate Court, Tiruchy, there was a compromise decree in which the plaint schedule properties were allotted to the mother of the plaintiff, by name, Thairyalakshmi Ayal, to be enjoyed by her till her life time, and thereafter, her legal heirs. Kachchiyuvarangappa Kalakka Thozha Udaiyar and Chinnrajathurai, the two sons of Kachchi Chinna Nallappa Kalakka Thozha Udaiyar died without leaving any heir and therefore, the properties allotted to the mother in Schedule "E" of the compromise decree in O.S.No.55/53 belonged to the plaintiff and his brother, Chinnakulandai Raja. Chinnakulandai Raja died intestate leaving the defendants 1 to 8 as his legal heirs. Therefore, the plaintiff and defendants 1 to 8 are entitled to equal share in respect of Item Nos.1 to 7 and 9 to 13 in the properties mentioned in the schedule. The 8th Item of property belonged to the plaintiff and his brothers, Chinnarajathurai late and Chinnakulandai Raja late. Chinnakulandai Raja late bequeathed his share in Item 8 under a Will dated 26.11.62 in favour of the first defendant and so the plaintiff is entitled to 1/3rd share in Item 8. Items 9 to 13 are the ancestral properties of the plaintiff and the defendants 1 to 8. Therefore, the plaintiff is entitled to half share and the defendants 1 to 8 are entitled to half share. As the defendants 1 to 8 are enjoying the properties and are not coming forward to partition the properties, the suit filed for partition as stated above.

3. The second defendant filed a statement and the statement was adopted by the defendants 1, 5, 7 and 8. It is contended that the plaintiff filed the suit for partition in respect of certain items of properties leaving other items and therefore, the suit is bad for partial partition. The compromise decree passed in O.S.No.55/53 on the file of the Subordinate Court, Tiruchy was admitted and as per the compromise decree, the suit items 1 to 7 are liable for partition and the plaintiff is entitled to undivided half share and the defendants 1 to 8 are entitled to remaining half share. It is also stated that for convenient enjoyment, item 7 may be divided as North and South and Northern portion may be allotted to the defendants so that they can enjoy their property which is lying adjacent to their northern property. The extent given for Item No.8 is denied and it is stated that Item 9 is an integral part of Item 8. Though the plaintiff is entitled to 1/3rd share of Item 8, the remaining 2/3 share belonged to the defendants 1 to 8, the plaintiff is not e