JUDGMENT :

C.V. KARTHIKEYAN, J.

1. The plaintiff in O.S. No. 125 of 1985 on the file of District Munsif Court at Coonoor is the appellant herein.

2. The said suit had been filed for partition of the suit schedule properties into 96 equal shares and to allot 11 such shares to the plaintiffs and for consequential reliefs of actual allotment in the aforesaid manner and for costs.

3. By judgment dated 31.01.2003, the District Munsif Coonoor had entered into a discussion on the oral and documentary evidence adduced and held that the plaintiff was entitled to the relief of partition and separate possession as claimed in the suit and decreed the suit.

4. Aggrieved by the said judgment, the defendants who were aggrieved, filed A.S. No. 23 of 2004. The Appeal Suit came up for consideration before the Subordinate Judge of Nilgiris at Uthagamandalam. By judgment dated 23.11.2005, the learned Sub Judge had interfered with the decree granted by the Trial Court and allowed the Appeal Suit and dismissed the Original Suit granting partition.

5. During the course of the appeal, a perusal of the recording shows that though further documents had been marked as Exhibits, there is no reference to any Interlocutory Application having been filed under Order 41 Rule 27 of C.P.C.

6. It is also seen that the First Appellate Court had framed only one point for consideration under Order 41 Rule 31 C.P.C. namely whether the appeal should be allowed or not. Aggrieved by such judgment of the First Appellate Court, the plaintiff has filed the present Second Appeal. The Second Appeal had been admitted on the following 3 substantial questions of law:

“(i) Whether the First Appellate Court below is correct in reversing the judgment and decree passed by the trial Court on the ground of non-joinder of parties?

(ii) Whether the First Appellate Court is correct in finding that the appellant/plaintiff could have filed the suit for declaration and recovery of possession, instead of the suit for partition and separate possession.

(iii) Whether the First Appellate Court is right in reversing the judgment and decree passed by the trial Court and dismissing the suit on the ground of relinquishment of right by the mother of the appellant/plaintiff in the absence of any supporting documents?”

7. Pending the appeal, 3 further respondents have been impleaded as 67, 68 and 69 respondents. It is also informed that pending the appeal, 1 and 3rd respondents had died but their legal heirs are already on record.

O.S. No. 125 of 1985 (District Munsif Court, Coonoor):

8. The suit had been filed seeking partition and separate possession. It was claimed that the properties in the schedule to the plaint originally belong to Karia Nanja Gowder who had 3 sons K.N. Bellie Gowder, K.N. Kullan and K.N. Ramakrishnan @ K.N. Joghee. It was claimed that the 3rd son K.N. Ramakrishnan pre-deceased his father and died in the year 1969. The plaintiff is his daughter. The 1-11 defendants were the legal representatives of the first and second sons namely K.N. Bellie Gowder and K.N. Ramakrishnan. The plaintiff in her capacity as grand daughter claimed a share in the said properties of her paternal grand father claiming that owing to the death of grand father she was independently entitled to share in the properties. It had also been stated that she had issued a notice on 22.08.1973 seeking partition and separate possession, for which a reply was also issued on 15.09.1973, in which it was stated that a panchayat would be held and issues could be settled amicably. However, since effective settlement had not been reached, necessity to institute the suit had arisen. Her mother was shown as the third defendant. It was also claimed that substantial properties were being dealt with and this necessitated the purchasers to be impleaded as parties to the suit. In view of the above facts, the plaintiff had filed the suit for partition and separate possession.

9. The 3rd defendant had filed a written statement which was adopte