The right to seek partition as a purchaser from one of the sharers and the rejection of the claim of non-joinder of necessary party based on established possession and title.

1. The defendant in a suit for partition and delivery of possession, has filed this Second Appeal challenging the judgment and decree dated 23.12.2004 passed by the learned Subordinate Judge, Namakkal, in A.S. No. 251 of 1997 wherein and by which the judgment and decree dated 30.04.1997 passed by the learned District Munsif - cum -Judicial Magistrate, Paramathi, in O.S. No. 236 of 1996 granting decree for partition, was confirmed.

2. The plaintiff / sole respondent herein filed O.S. No. 236 of 1996 seeking to appoint Commissioner and divide the 'B' Schedule properties into two equal shares and all such shares separately and for delivery of possession.

3. A brief narration of facts necessary for appreciating the contentions raised herein may be set out. According to the plaintiff, he purchased the 'A' schedule property, which is a part of 'B' schedule property, from one Sankarandi Gounder, brother of the defendant, by virtue of sale deed dated 08.11.1989. It is averred that since there was no partition previously, the defendant had issued notice to the plaintiff even prior to the purchase claiming half share in 'B' schedule properties for which the plaintiff gave a suitable reply. While so, after purchase of the property, the plaintiff filed a suit O.S. No. 283 of 1990 before the Court of District Munsif, Namakkal, for declaration and permanent injunction against the defendant and the same was dismissed with an observation that the plaintiff can file a suit for partition. Accordingly, the plaintiff issued a notice to the defendant on 24.02.1992 for partition of the suit property for which the defendant sent a reply with certain allegations. Based on the strength of the judgment in the earlier suit, the plaintiff filed O.S. No. 236 of 1996.

4. Resisting the suit, the defendant filed written statement denying all the allegations stated in the plaint. According to him, since Sankarandi Gounder, who is a necessary party, has not been impleaded as party to the suit, the suit itself is not maintainable.

5. It is seen that pending the suit, the plaintiff died and hence, his legal heirs were impleaded as respondents 1 and 2 as per order dated 16.3.2004 in I.A. No. 7 of 2004.

6. The trial Court, on the basis of the above pleadings, proceeded with the trial of the suit. The plaintiff examined himself as P.W.1 and marked 5 documents, viz., Exs. A.1 to A.5. To nullify the evidence adduced on behalf of the plaintiff, the defendant examined himself as D.W.1 and marked Ex. B.1 series.

7. The learned trial Judge, appreciating the pleadings, as well as scanning the materials, found that the plaintiff has proved his right by filing Ex. A.1 and accordingly, decreed the suit as prayed for, by judgment dated 30.4.1997, holding that the plaintiff is entitled for partition of the suit 'A' and 'B' schedule properties. As against the same, the defendant preferred appeal in A.S. No. 251 of 1997. The Lower Appellate Court, on appreciation of the evidence and the materials available thereon, confirmed the decree of the trial Court dismissing the First Appeal. Feeling aggrieved, the defendant is before this Court with the present Second Appeal.

8. At the time of admission of this Second Appeal, the following substantial questions of law were formulated for consideration:-

(i) Whether the Courts below are correct in decreeing the suit, when the plaintiff has miserably failed to add his vendor as party in the present suit; in such circumstances, is the present suit bad for non-joinder of necessary and property party?

(ii) Whether the present suit for partition is maintainable in law, the plaintiff had chosen to add only one of the joint family property alone to be partitioned in the above suit and leaving some of other joint family properties which are yet to be partitioned among parties?

9. Heard Mr. P. Mathivanan, learned counsel appearing for the appellant / defendant and perused the records.

10. It is admitted fact that the suit properties