In partition suits, the inclusion of all necessary parties and properties is essential; non-joinder renders the suit incompetent.

JUDGMENT :

R.Sakthivel, J.

The Second Appeal is directed by unsuccessful plaintiff against the Judgment and Decree dated February 17, 2016 passed in A.S.No.7 of 2014 by the 'Subordinate Court, Thiruvarur' ['First Appellate Court' for brevity], whereby the Judgment and Decree dated March 24, 2014 passed in O.S.No.28 of 2008 by the 'District Munsif cum Judicial Magistrate Court, Nannilam' ['Trial Court' for brevity] was confirmed.

2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

3. The third defendant remained ex-parte throughout and it is represented that she is no more. The appellant / plaintiff had filed a memo dated March 3, 2022 and sought to dispense with the notice to her. Hence, notice to her is hereby dispensed with.

PLAINTIFF'S CASE

4. The plaintiff filed the Original Suit for partition claiming that Item No.1 of Suit Properties belonged to plaintiff’s father - Nadesa Vanniyar while Item No.2 is Nadesa Vanniyar’s lease hold properties owned by third defendant - Jayalakshmi. Nadesa Vanniyar’s wife predeceased him. Nadesa Vanniyar died intestate around 1992, leaving behind his three sons - the plaintiff, the first defendant and second defendant’s husband, Navarathinam. After Nadesa Vanniyar’s demise, revenue records in respect of Item No.1 was mutated to the names of the plaintiff, first defendant and the husband of the second defendant jointly. As regards Item No.2, the plaintiff alone is in possession and enjoyment of it as a cultivating tenant. However, the plaintiff preferred to partition the same with defendants 1 and 2. The defendants 4 and 5 in collusion with defendants 1 and 2, attempted to disturb the plaintiff’s peaceful possession and enjoyment of the Item No.2 on March 29, 2008. Hence, the Suit for partition of his 1/3^rd share in Suit Properties.

DEFENDANTS' CASE

5. The second defendant filed written statement which was adopted by defendants 1, 4 and 5. The third defendant remained ex-parte throughout.

6. In the written statement, it is averred that the Suit Properties and other properties were orally partitioned 25 years ago during the lifetime of Nadesa Vanniyar and that the parties have been in exclusive possession of their respective shares since then. The plaintiff has deliberately excluded other properties left by father – Nadesa Vanniyar from the Suit; there are some more lease hold properties enjoyed by father - Nadesa Vanniyar which belong to one Radhabai. It is false to aver that the plaintiff alone is cultivating and enjoying the lease hold properties post the demise of Nadesa Vanniyar. The plaintiff has never cultivated Item No.2. Item Nos.1 and 2 were allotted to defendants 1 and 2 in the aforesaid Oral Partition while the plaintiff being the eldest son, was allotted 350 Kuzhies of Nadesa Vanniyar’s self-acquired properties and the lease hold properties that belonged to said Radhabai along with an ancestral house and some other properties. Defendants 1 and 2 are in possession and enjoyment of the Item No.2 and paying the lease amount in kind to third defendant.

6.1. On November 16, 2004, the first defendant purchased the leasehold properties of an extent of 26 Cents in Survey No.117/1, 44 Cents in Survey No.117/3 and 20 Cents in Survey No.117/4 from the third defendant. Thereafter, he sold an extent of 10 Cents in Survey No.117/1 and 5 Cents in Survey No.117/4 to fourth defendant. Further, the first defendant is residing in a thatched house built by him in Survey No.117/3. Similarly, the second defendant purchased leasehold properties of an extent of 13 Cents in Survey No.117/4 and