JUDGMENT 1. The plaintiff in O.S.No.192 of 1992 on the file of the Subordinate Court, Ariyalur is the appellant. The plaintiff filed the suit for partition of his half share in the plaint Items 1 to 7 and 9 to 13, and 1/3rd share in item 8, and also for mesne profits. 2. The defendants filed counter claim claiming half share in the properties mentioned in the schedule to the written statement and also claimed 2/3rd share in Item 8 and also disputed the description of property in Items 9 to 13. The Trial Court granted preliminary decree granting half share to the plaintiff in Items 1 to 7, 11 to 13 of the plaint schedule and also half share in Items 14 to 29 in the properties mentioned in the schedule to the written statement and also 1/3rd share in Items 8 & 9, and also granted preliminary decree in favour of the defendants 1 to 8 in respect of half share in items 14 to 29 in respect of the properties mentioned in the schedule to the written statement. Aggrieved by the same, this appeal is filed by the plaintiff. 3. The case of the plaintiff is as follows:- The property was originally owned by Kachchi Chinna Nallappa Kalakka Thozha Udaiyar. His wife was Thairyalakshmi Ayal. He had four sons, namely, Kachchiyuvarangappa Kalakka Thozha Udaiyar, Chinnrajathurai, Plaintiff and Chinnakulandai Raja. The suit properties are the joint family properties of Kachchi Chinna Nallappa Kalakka Thozha Udaiyar and his four sons. In O.S.No.55/53 on the file of the Subordinate Court, Tiruchy, there was a compromise decree in which the plaint schedule properties were allotted to the mother of the plaintiff, by name, Thairyalakshmi Ayal, to be enjoyed by her till her life time, and thereafter, her legal heirs. Kachchiyuvarangappa Kalakka Thozha Udaiyar and Chinnrajathurai, the two sons of Kachchi Chinna Nallappa Kalakka Thozha Udaiyar died without leaving any heir and therefore, the properties allotted to the mother in Schedule "E" of the compromise decree in O.S.No.55/53 belonged to the plaintiff and his brother, Chinnakulandai Raja. Chinnakulandai Raja died intestate leaving the defendants 1 to 8 as his legal heirs. Therefore, the plaintiff and defendants 1 to 8 are entitled to equal share in respect of Item Nos.1 to 7 and 9 to 13 in the properties mentioned in the schedule. Chinnakulandai Raja died intestate leaving the defendants 1 to 8 as his legal heirs. Therefore, the plaintiff and defendants 1 to 8 are entitled to equal share in respect of Item Nos.1 to 7 and 9 to 13 in the properties mentioned in the schedule. The 8th Item of property belonged to the plaintiff and his brothers, Chinnarajathurai late and Chinnakulandai Raja late. Chinnakulandai Raja late bequeathed his share in Item 8 under a Will dated 26.11.62 in favour of the first defendant and so the plaintiff is entitled to 1/3rd share in Item 8. Items 9 to 13 are the ancestral properties of the plaintiff and the defendants 1 to 8. Therefore, the plaintiff is entitled to half share and the defendants 1 to 8 are entitled to half share. As the defendants 1 to 8 are enjoying the properties and are not coming forward to partition the properties, the suit filed for partition as stated above. 3. The second defendant filed a statement and the statement was adopted by the defendants 1, 5, 7 and 8. It is contended that the plaintiff filed the suit for partition in respect of certain items of properties leaving other items and therefore, the suit is bad for partial partition. The compromise decree passed in O.S.No.55/53 on the file of the Subordinate Court, Tiruchy was admitted and as per the compromise decree, the suit items 1 to 7 are liable for partition and the plaintiff is entitled to undivided half share and the defendants 1 to 8 are entitled to remaining half share. It is also stated that for convenient enjoyment, item 7 may be divided as North and South and Northern portion may be allotted to the defendants so that they can enjoy their property which is lying adjacent to their northern property. The extent given for Item No.8 is denied and it is stated that Item 9 is an integral part of Item 8. Though the plaintiff is entitled to 1/3rd share of Item 8, the remaining 2/3 share belonged to the defendants 1 to 8, the plaintiff is not entitled to claim half share in Item 9 as Item 9 is integrated with Item 8. Though the plaintiff is entitled to 1/3rd share of Item 8, the remaining 2/3 share belonged to the defendants 1 to 8, the plaintiff is not entitled to claim half share in Item 9 as Item 9 is integrated with Item 8. The extent given for Item No.10 was also denied and as per the compromise decree "C" schedule property in the decree was allotted to the plaintiff and "D" schedule property was allotted to late Chinna Kulandai Raja. After the death of Yuvaraja, the remaining brothers (1) Late Chinnarajathurai (2) the plaintiff and (3) late Chinnakulandairaja had divided Yuvaraja's properties by virtue of registered partition deed dated 16.7.1955. The boundary recital in respect of Item 12 is also not correct and insofar as Item 11 to 13 are concerned, the plaintiff is entitled to half share. The properties mentioned in the schedule to written statement also belonged to the plaintiff and the defendants 1 to 8 in which the defendants are entitled to half share and therefore, these properties are also liable to be divided between the plaintiff and the defendants and the defendants 1 to 8 made a counter claim for partition in respect of Items 14 to 29 mentioned in the Written Statement claiming half share in those properties. 4. The plaintiff filed additional pleadings stating that Item No.14 mentioned in the written statement is a Durbar Hall used by the family members for family functions and Items 15 and 26 are frontage of the Palace. Item No.16 is a place where Nagara is beaten. Item 17 is a common pathway and Item 8 is Paddi Storage. Items 19, 20, 21, and 24 are the frontage of the Palace where elephants are tied. Item 22 is the place where the family members offered Sreethanam to the elders. Item Nos.23 forms part of Item No.6 mentioned in the plaint. Item 25 is not liable for partition. Items 27, 28 and 29 are lakes, which cannot be partitioned. Therefore, the properties mentioned in the written statement cannot be partitioned. 5. The second defendant filed a reply statement denying the allegation that the properties mentioned in the written statement cannot be partitioned and also stated that now those properties are not used for the purpose mentioned in the additional plaint filed by the plaintiff and therefore, those properties can also be partitioned. 6. 5. The second defendant filed a reply statement denying the allegation that the properties mentioned in the written statement cannot be partitioned and also stated that now those properties are not used for the purpose mentioned in the additional plaint filed by the plaintiff and therefore, those properties can also be partitioned. 6. On the basis of the above pleadings, the Trial Court framed the following issues:- (i) Whether the particulars of the suit properties and the extent mentioned in the plaint are correct? (ii) Whether the entire properties were not included in the suit for partition? (iii) Whether the plaintiff is entitled to half share in Item Nos.1 to 7 and 9 to 13 to the plaint schedule. (iv) Whether Periya Andavar Amman Goddess is a necessary party? If so, the suit is bad for non-joinder of necessary party? (v) Whether Item Nos.14 to 29 mentioned in the written statement are joint family properties and are in common enjoyment of the joint family? (vi) Whether the trees mentioned as Items 1 to 15 in the written statement are in existence and whether they are liable for partition? If so what is the share of the parties to those trees. (vii) Whether the plaintiff is entitled to the relief of partition? (viii) Whether the defendants are entitled to claim partition as per their counter claim. (ix) Whether the Court Fee paid by the plaintiff as well as the defendants is correct? (x) To what relief, the parties are entitled to? 7. On the side of the plaintiff, the plaintiff examined himself as PW.1 and marked one document. On the side of the defendants, the second defendant was examined as DW.1 and also examined 2 witnesses and marked 8 documents and Exs.C1 to C4 were marked through DW.2. (x) To what relief, the parties are entitled to? 7. On the side of the plaintiff, the plaintiff examined himself as PW.1 and marked one document. On the side of the defendants, the second defendant was examined as DW.1 and also examined 2 witnesses and marked 8 documents and Exs.C1 to C4 were marked through DW.2. The Trial Court tried issues 1 and 2 and held that there is some doubt about the extent in respect of Item No.10 to the plaint schedule and Item No.6 mentioned in the plaintiff schedule and Item No.23 mentioned in the written statement are adjacent properties and even though there are some dispute regarding the extent in the properties mentioned in the plaint as well as in the written statement, this can be sorted out in the final decree and there is no doubt regarding the fact that Items 14 to 29 mentioned in the schedule to the written statement also belonged to the parties and that was also admitted by the plaintiff and therefore, all the suit properties included in the plaint as well as in the written statement are to be partitioned and answered Issues 1 and 2 accordingly. 8. Issue No.4 was answered holding that Periya Andavar Amman Goddess is not a necessary party and therefore, the suit is not bad for non-joinder of the said party. 9. Issue No.5 was answered that Items 14 to 29 mentioned in the written statement are the common properties belonging to the plaintiff and the defendants 1 to 8 and they are enjoying them in common. 10. Issue No.6 was answered that in respect of Items 1 to 15 in the properties mentioned in the written statement, they were not proved by DW.1 through proper evidence and in respect of teak wood removed from Item No.8, they are in the Udaiyar Palayam Police Station and the plaintiff did not deny the share of defendants 1 to 8 in those teak wood and the defendants also reserved their right in respect of teak wood and answered Issue No.6 accordingly. Issue No.9 was answered holding that court fee was properly paid. 11. Issue No.9 was answered holding that court fee was properly paid. 11. Issue Nos.3, 7 and 8 were tried together and held that the plaintiff is entitled to ½ share in Items 1 to 7 and 9 to 13 mentioned in the plaint schedule and also 1/3rd share in items 8 & 9 and in Item No.10 excluding Samadhi, the plaintiff is entitled to half share. In Items 11 to 13, the plaintiff is entitled to half share and Items 14 to 29 mentioned in the written statement are also liable for partition. In the result, preliminary decree was passed in favour of the plaintiff declaring half share in respect items 1 to 7, 10, 11,12, 13 and Items 14 to 29 of the properties mentioned in the written statement and 1/3rd share in Items 8 & 9 and in respect of Item No.10 excluding Samadhi, half share in 57 Cents. 12. Mr. S.Parthasarathy, learned Senior Counsel appearing for the appellant contended that the trial Court erred in passing preliminary decree in respect of the properties mentioned in the written statement and contended that those properties mentioned in the written statement in respect of which counter claim was also filed by the defendants are not partitionable properties and they are enjoyed in common by all the parties and those properties cannot be partitioned and without appreciating the same, the Court below granted preliminary decree in respect of the properties mentioned in the written statement accepting the counter claim of the defendants 1 to 8. He also submitted that having regard to the nature of the properties as stated in the additional statement filed by the plaintiff, those properties cannot be divided and those properties are meant for the common enjoyment of the family properties and therefore, the preliminary decree passed in respect of Item Nos.14 to 29, the properties mentioned in the written statement, is liable to be set aside. 13. 13. On the other hand, the learned counsel for the respondents submitted that those properties which are mentioned in the written statement in respect of which, counter claim was also preferred by the defendants 1 to 8, are also liable for partition and the purpose for which those properties were kept in common is not in vogue and therefore, there is no necessity to keep those properties in common and they have admitted that those properties are enjoyed in common, and therefore, are liable to be partitioned and therefore, there is no need to interfere with the Judgment and Decree of the Trial Court. 14. On the basis of the above submissions, the following issue for consideration arises in this appeal:- Whether the Court below was right in granting preliminary decree in respect of items 14 to 29 of the properties mentioned in the written statement in respect of which counter claim is made by the defendants 1 to 8? 15. It is admitted by both the parties that in O.S.No.55/53, the plaint schedule properties were allotted to the mother of the first plaintiff to be enjoyed by her till her life time and thereafter, to be enjoyed by her legal heirs. It is also admitted that the plaintiff and Chinnakulandai Raja, the husband of the first defendant were the persons entitled to succeed to the estate of their father and therefore, in respect of the plaint schedule properties, the plaintiff is entitled to half share and this is also not disputed by the defendants 1 to 8. The defendants 1 to 8 only disputed that Items 8 and 9 cannot be separated and in Item No.10, the plaintiff cannot claim any share and in Item Nos.8 and 9, the plaintiff is only entitled to 1/3rd share and remaining 2/3rd share belonged to the defendants 1 to 8 and that was also accepted by the plaintiff and no objection was raised by the learned Senior Counsel appearing for the appellant with respect to partition of the plaint items. 16. It is also admitted by the plaintiff that the properties mentioned in Items 14 to 29 mentioned in the written statement in respect of which counter claim was made by the defendants 1 to 8 also belong to the plaintiff and the defendants 1 to 8, and they are enjoying them in common. 16. It is also admitted by the plaintiff that the properties mentioned in Items 14 to 29 mentioned in the written statement in respect of which counter claim was made by the defendants 1 to 8 also belong to the plaintiff and the defendants 1 to 8, and they are enjoying them in common. The defendants 1 to 8 raised a plea in the written statement that the suit for partition to the plaint schedule properties alone is not maintainable and the other properties are also commonly enjoyed by the parties only and without including those properties, the suit is bad for partition and made counter claim in respect of Items 14 to 29 contending that those properties are also liable for partition. Defendants 1 to 8 also admitted that the plaintiff is entitled to undivided half share in items 14 to 29 mentioned in the schedule to the written statement. Though it is claimed by the plaintiff that Items 1 to 8, 14 to 29 mentioned in the written statement are enjoyed in common, the only contention raised by the learned Senior Counsel appearing for the appellant is that those properties cannot be partitioned and those parties are enjoyed in common by parties on various occasions. A reading of the additional statement filed by the plaintiff stating the nature of the properties in respect of 14 to 29 mentioned in the schedule to the written statement would make it clear that those properties need not be enjoyed in common having regard to the conduct of the parties and the purposes for which those properties were used by their ancestors. Now, the parties have divided their properties and they are living separately and it is not the case of the plaintiff that Items 14 to 29 cannot be divided. The only contention is that those properties are kept for common purposes and therefore, they are not liable for partition. 17. According to me, there is no common purpose and the properties were used only for certain functions and only on that ground, it cannot be stated that those properties are impartitionable as the properties are liable for partition. Otherwise, the suit is bad for partial partition. 17. According to me, there is no common purpose and the properties were used only for certain functions and only on that ground, it cannot be stated that those properties are impartitionable as the properties are liable for partition. Otherwise, the suit is bad for partial partition. Considering all those aspects, the trial court rightly held that those properties mentioned in Items 14 to 29 in the Written Statement are also liable for partition and the plaintiff is entitled to half share and the defendants 1 to 8 are entitled to half share in those properties and allowed counterclaim, granted preliminary decree in respect of the properties mentioned in 14 to 29 in the written statement and declared half share to the plaintiff. Hence, I do not find any infirmity in the Judgment and decree of the Court below. The point for consideration is also answered accordingly. 18. In the result, the Judgment and Decree of the Court below are confirmed. The Appeal is dismissed. No order as to costs. The connected Miscellaneous Petition is closed.