J U D G M E N T

(Judgment of the Court was made by R.SUBRAMANIAN, J.)

This Civil Miscellaneous Petition in C.M.P.No.18925 of 2023 has been filed seeking amendment of the schedule of property in the preliminary decree dated 20.03.2012 as confirmed in A.S.No.913 of 2012 by this Court in its judgment dated 08.06.2016. This appeal is against the final decree passed by the Trial Court pursuant to the preliminary decree referred to above.

2.The respondent sued for partition of his 1/2 share of the suit "A"

schedule property, measuring about 9,135 Sq.ft, which houses a Kalyana Mandapam. The respondent had pleaded in the plaint that he along with the 1st appellant had purchased an extent of 4,360 Sq.ft. (10 cents) under a sale deed dated 30.04.2023. After the said purchase, the property belonging to the family, which was situate on the Western side of the property purchased under Ex.A1, sale deed referred to supra was merged and a Kalyana Mandapam was constructed in both the properties. Specifically pleading that the property purchased under Ex.A1, sale deed and the Family property, which was used for construction of the Kalyana Mandabam became the joint property of the plaintiff and the 1st defendant by purchase and by treatment, the plaintiff sought for 1/2 share in the entire "A" schedule property measuring about 9,135 Sq.ft.

3.The said suit was resisted by the defendants, who are husband and wife contending that the plaintiff never contributed anything either for purchase of the land or construction of the Kalyana Mandabam and he was only a name lender therefore, he is not entitled to a share. Considerable reliance was placed on Ex.B1, an alleged release executed by the plaintiff, acknowledging the title of the defendant.

4.The Trial Court on the above pleadings framed the following issues in the suit:-

"i) Whether the plaintiff and the defendant are joint owners of the suit properties.

ii) Whether the plaintiff is entitled to 1/2 share in the suit properties.

iii) To what relief the plaintiff is entitled to.

The issues were recast on 07.03.2012 by adding the following issue:-

iv)Whether the suit is barred by Order 2 Rule 2 of C.P.C.

5.After trial, the Trial Court recorded a finding that the suit "A"

schedule property belongs to the plaintiff and the 1st defendant. Ex-B1 release cannot be looked into for want of registration. However, on the said finding, the learned Trial Judge while granting a decree in respect of "A" schedule property, declaring 1/2 share of the plaintiff, dismissed the suit in respect of the "B" schedule movables. Aggrieved by the said judgment and decree, the defendants preferred an appeal in A.S.No.913 of 2012 before this Court. This Court proceeded on the assumption that the land that was jointly purchased under Ex.A1, sale deed alone was the subject matter of the suit. It however, agree with the findings of the Trial Court and dismissed the appeal by confirming the judgment and decree of the Trial Court. There was no further appeal.

6.After the disposal of the appeal on 08.06.2016, the plaintiff filed I.A.No.110 of 2012 on the file of the I-Additional District and Sessions Judge, Cuddalore, seeking a final decree. A Commissioner was appointed and he filed a report suggesting division of the property by drawing a line in the middle of the property running from North to South and dividing the property into two halves namely Eastern and Western half. The defendants objected to the division suggested by the Commissioner. It was specifically pointed out that the existing building itself is totally ignored by the Commissioner and the division is not just and proper. It was contended that major portion of the building is on the Eastern portion and only a minor portion of the building is in the Western portion and therefore, the division as suggested by the Commissioner will not be just and equitable.

7.It was also contended that the preliminary decree itself is erroneous in as much as it includes, large extent of land that is