The lack of conclusive evidence and non-compliance with legal procedures can impact the outcome of a partition suit.

T.S. SIVAGNANAM, J.

1. This appeal has been filed by the plaintiffs in O.S.No.26 of 2008 on the file of the Sub-Court, Bhavani. The suit was filed for partition and separate possession and allotment of 95 cents and 54= sq.,ft., in the Suit Schedule properties.

2. The Suit was dismissed by judgment and decree dated 26.10.2015. The appellants filed appeal before the Fourth Additional District Court, Bhavani in A.S.No.4 of 2016, which was dismissed by judgment and decree dated 05.10.2017. Challenging the correctness of the judgments and decrees of the Courts below, the present appeal has been filed by the plaintiffs raising the following substantial questions of law:-

a. Whether the courts below have committed an error in non-suiting the plaintiffs on the basis of the earlier judgment and decree dated 25.03.1968 made in O.S.No.20 of 1968 (Ex.A10 and Ex.A11), by ignoring factum of the release deeds dated 22.04.1968 (Ex.A1) and 02.05.1968 (Ex.A2), executed by the plaintiffs therein in favour their brothers?

b. Have not the courts below erred in faulting the plaintiffs in the present suit for ignoring the alienations made prior to the preliminary decree dated 25.03.1968 made in O.S.No.20 of 1968, especially when none of the parties to O.S.No.20 of 1968 have not taken steps to file final decree petition till this date?

c. Whether the courts below are right in placing the burden and blaming the plaintiffs in a suit for partition, particularly when the status of the parties are one and the same and vice versa?

d. Whether the judgment of the first appellate court is vitiated for non compliance of the mandate of Order 41 Rule 31 CPC?

3. Heard Mr.N.Manokaran, learned counsel appearing for the Appellants.

4. In this judgment, the parties shall be referred to as per the rank assigned before the Trial Court.

5. The case of the plaintiffs is that the Suit properties originally belonged to one Ayyamperumal Gounder and was his absolute property. His wife was Tmt.Irulayee, he had two sons Gurusamy and Nagappan and three daughters Pechiammal, Guruvayee and Mariyayee. Tmt.Irulayee died in 1960 and Ayyamperumal Gounder died in the year 1962 and both of them died intestate. The daughters filed a Suit in O.S.No.20 of 1968, before the District Munsif Court, Erode against their brothers for partition and separate possession. The Suit was decreed in favour of the daughters allotting 3/5th share and a preliminary decree to the said effect was passed. The first defendant is the wife of Nagappan and defendants 2 to 5 are children of Nagappan. The third daughter Mariyaye died leaving behind her husband Mariyappan and five children. Pursuant to a release deed dated 22.04.1968, the defendants 1 to 5 became entitled to = share of the Suit property i.e., 1/5th share by inheritance and 1=/5 share by way of the release deed. The first plaintiff is the mother of the second plaintiff and the husband of the first plaintiff is Mariyappan. Mariyappan and 6th defendant Muthuvel are brothers, who are sons of Gurusamy.

6. It was contended that the said Gurusamy is entitled to 1/5th share by way of inheritance and on 02.05.1968, he obtained release deed from the female heirs in respect of 1=/5 share and the said Gurusamy died intestate about 25 years ago leaving his wife Tmt.Thavasiyammal as his legal heir, who also died intestate.

7. The Plaintiffs would contend that the defendants 1 to 5 and husband of the first plaintiff and the 6th defendant Muthuvel were enjoying the property in common. The first plaintiff's husband along with the 6th defendant executed a sale deed dated 20.02.1991 in favour of the 8th defendant in respect of 0.14 cents of land in R.S.No.32/5. Though in the said document, four boundaries are mentioned, according to the plaintiffs, the properties were enjoyed in common. The plaintiffs would further contend that they and the defendants 6 & 7 are entitled to remaining = share of the properties. The 7th defendant is the daughter of the 6th defendant. It was