C.V.Karthikeyan, J.

The defendant in O.S.No.51 of 1995 on the file of the District Munsif Court, Periyakulam is the appellant herein. The said suit had been filed by two plaintiffs Palaniammal and her son Sathishkumar, seeking partition and separate possession of 1/2 share in the suit property and for past and future mesne profits. The said suit came up for consideration before the District Munsif Court, Periyakulam, and by judgment and decree dated 07.08.1998, the suit was dismissed with costs. Challenging that Judgment, the plaintiffs filed A.S.No.97 of 1998 which came up for consideration before the Additional District Court/Fast Track Court No. IV, Madurai. By judgment and decree dated 30.09.2005, the appeal was allowed and the suit was decreed. Aggrieved by that judgment, the defendant had filed the present second appeal.

2. At the time of admission, the following two substantial questions of law had been framed for consideration:

"(i). Whether the Lower Appellate court has not correctly appreciated the principle that only facts and not the evidence by which such facts are to be proved are to be pleaded?

(ii). Whether the rejection of Ex.B1 to Ex.B3 by the Lower Appellate Court as evidence to prove prior partition is erroneous, capable of making the finding of the Lower Appellate Court perverse?"

3. During the course of arguments, with the consent of both the learned counsel, the following additional substantial question of law had been framed for consideraton:

"Whether the suit in O.S.No.51 of 1995 is bad for non-joinder of necessary party and Whether the Lower Appellate Court should have considered that aspect?"

O.S.No.51 of 1995 (District Munsif Court Periyakulam):

4. This suit was filed by Tmt.Pazhaniammal and her minor son Sathishkumar against Muthupandu Rayar, the paternal uncle of Pandi, the late husband of the first plaintiff. The suit had been filed seeking partition and separate possession of + share in the suit properties and for past and future mesne profits. The suit properties were lands in Kullapuram Village, Periyakulam Taluk in S.No.721/2 measuring 1.44 acres, and in S.No.721/1 measuring 1.22 acres and in S.No.723/2 measuring 1.21 acres, measuring totally 3.87 acres together with, motor pumpsets and trees. According to the plaintiffs, the suit properties originally belonged to Kamatchiammal wife of Mahalingapandu Rayar. The properties were purchased by the defendant Muthupandu Rayar and Pandi, the minor son of his elder brother Sangilipandu Rayar, by sale deed dated 04.03.1971. At the time of the marriage of the first plaintiff with Pandi and at the time of the birth of the second plaintiff, the suit properties were enjoyed in common by the family. The defendant, in his capacity as paternal uncle of Pandi, who later became the husband of first plaintiff was in control of the family affairs. Agriculture was cultivated in the lands and commercial trees were also planted. Sugarcane was also harvested. Partition was not affected over the said lands. It was stated that Pandi, the husband of the first plaintiff and the father of second plaintiff, died in 1991. After his death, the plaintiffs were not given any share in the income from the properties. When they demanded a share, they were threatened and therefore they left Kullapuram village and resided in the house of Kamatchi Servi, the father of the first plaintiffs. The plaintiffs issued an advocate notice dated 19.10.1994. The defendant sent a reply notice dated 05.11.1994. Since the defendant did not come forward to partition the properties into + share, the suit had been filed for the relief stated above.

5. In the written statement filed by the defendant, it had been stated that the father of the defendant Mahalingapandu Rayar had two sons, namely Sangilipandu Rayar and the defendant, Muthupandu Rayar. Sangilipandu Rayar hada a son, Pandi, the husband of the 1st plaintiff and father of the 2nd plaiantiff. Soon after the death of his son Pandi, Sangilipand