JUDGMENT C.V.Karthikeyan, J. The defendant in O.S.No.51 of 1995 on the file of the District Munsif Court, Periyakulam is the appellant herein. The said suit had been filed by two plaintiffs Palaniammal and her son Sathishkumar, seeking partition and separate possession of 1/2 share in the suit property and for past and future mesne profits. The said suit came up for consideration before the District Munsif Court, Periyakulam, and by judgment and decree dated 07.08.1998, the suit was dismissed with costs. Challenging that Judgment, the plaintiffs filed A.S.No.97 of 1998 which came up for consideration before the Additional District Court/Fast Track Court No. IV, Madurai. By judgment and decree dated 30.09.2005, the appeal was allowed and the suit was decreed. Aggrieved by that judgment, the defendant had filed the present second appeal. 2. At the time of admission, the following two substantial questions of law had been framed for consideration: "(i). Whether the Lower Appellate court has not correctly appreciated the principle that only facts and not the evidence by which such facts are to be proved are to be pleaded? (ii). Whether the rejection of Ex.B1 to Ex.B3 by the Lower Appellate Court as evidence to prove prior partition is erroneous, capable of making the finding of the Lower Appellate Court perverse?" 3. During the course of arguments, with the consent of both the learned counsel, the following additional substantial question of law had been framed for consideraton: "Whether the suit in O.S.No.51 of 1995 is bad for non-joinder of necessary party and Whether the Lower Appellate Court should have considered that aspect?" O.S.No.51 of 1995 (District Munsif Court Periyakulam): 4. This suit was filed by Tmt.Pazhaniammal and her minor son Sathishkumar against Muthupandu Rayar, the paternal uncle of Pandi, the late husband of the first plaintiff. The suit had been filed seeking partition and separate possession of + share in the suit properties and for past and future mesne profits. The suit properties were lands in Kullapuram Village, Periyakulam Taluk in S.No.721/2 measuring 1.44 acres, and in S.No.721/1 measuring 1.22 acres and in S.No.723/2 measuring 1.21 acres, measuring totally 3.87 acres together with, motor pumpsets and trees. According to the plaintiffs, the suit properties originally belonged to Kamatchiammal wife of Mahalingapandu Rayar. The properties were purchased by the defendant Muthupandu Rayar and Pandi, the minor son of his elder brother Sangilipandu Rayar, by sale deed dated 04.03.1971. According to the plaintiffs, the suit properties originally belonged to Kamatchiammal wife of Mahalingapandu Rayar. The properties were purchased by the defendant Muthupandu Rayar and Pandi, the minor son of his elder brother Sangilipandu Rayar, by sale deed dated 04.03.1971. At the time of the marriage of the first plaintiff with Pandi and at the time of the birth of the second plaintiff, the suit properties were enjoyed in common by the family. The defendant, in his capacity as paternal uncle of Pandi, who later became the husband of first plaintiff was in control of the family affairs. Agriculture was cultivated in the lands and commercial trees were also planted. Sugarcane was also harvested. Partition was not affected over the said lands. It was stated that Pandi, the husband of the first plaintiff and the father of second plaintiff, died in 1991. After his death, the plaintiffs were not given any share in the income from the properties. When they demanded a share, they were threatened and therefore they left Kullapuram village and resided in the house of Kamatchi Servi, the father of the first plaintiffs. The plaintiffs issued an advocate notice dated 19.10.1994. The defendant sent a reply notice dated 05.11.1994. Since the defendant did not come forward to partition the properties into + share, the suit had been filed for the relief stated above. 5. In the written statement filed by the defendant, it had been stated that the father of the defendant Mahalingapandu Rayar had two sons, namely Sangilipandu Rayar and the defendant, Muthupandu Rayar. Sangilipandu Rayar hada a son, Pandi, the husband of the 1st plaintiff and father of the 2nd plaiantiff. Soon after the death of his son Pandi, Sangilipandu Rayar deserted the family. He went away with another lady. Thereafter, his wife Kamatchiammal and her son Pandi left for her parents' home. On attaining majority, Pandi got married to the first plaintiff Pazhaniammal. He died in 1991. He left behind his minor son Sathishkumar, the second plaintiff as his legal representative. It is stated that the defendant purchased the suit properties out of his own funds and out of sympathy, include the joint name of his brother's son Pandi in the sale deed. It had been stated that the suit properties had been divided and the western portion of 1.93 + cents had been allotted to Pandi. It is stated that the defendant purchased the suit properties out of his own funds and out of sympathy, include the joint name of his brother's son Pandi in the sale deed. It had been stated that the suit properties had been divided and the western portion of 1.93 + cents had been allotted to Pandi. The defendant had taken for himself the eastern portoin of 1.93+ cents. There was a clear dividing ridge between the two properties. The wife of Sangilipandu Rayar, Kamatchiammal was cultivating the minor's property. A well had been dug by the defendant and he also planted coconut trees. Kamatchiammal leased out the western portion to the defendant on a rent of Rs. 1,200/- per year for three years. The defendant claimed he had paid the entire rent of Rs. 3,600/- to Kamatchiammal. He also cultivated the western plot by running sugarcane crop. It was therefore stated that there cannot be any question of further partition. It had been stated that the suit has to be dismissed, since partition has already been effected. 6. This suit came up for consideration before the District Munsif Court Periyakulam. The learned Judge framed the following issues for trial: "(i). Whether the plaintiffs are entitled to partition and separate possession in the suit property? (ii) Whether the plaintiffs are entitled to mesne profits? (iii) Whether the western portion has been alloted to the plaintiffs? (iv) Whether proper court fees has been paid? (v) To what reliefs are the parties entitled to?" 7. During trial, the first plaintiff Pazhaniammal was examined as PW-1 and Kamatchi Sundaiyer was examined as PW-2. On the side of the defendant, the defendant Muthupandu Rayar was examined as DW-1 and Mahalinga Sundaiyer, Kamatichiyammal and Rajendran were examined as DW-2, DW-3 and DW-4. The plaintiff filed Exs.A1 to A4. Ex.A1 is the sale deed with respect to the suit property, dated 04.03.1971. Ex.A2 is the copy of the advocate notice, dated 19.10.1994 and Ex.A4 is the reply notice of the defendant 15.11.1994. On the side of the defendant, Exs.B1 to B5 were marked. Ex.B1 is the patta in the name of the defendant. Ex.B2 is the tax receipts, Ex.B3 is the patta register, Ex.B4 is the lease deed, dated 09.10.1993 and Ex.B5 is the lease deed, dated 09.01.1997. 8. On the side of the defendant, Exs.B1 to B5 were marked. Ex.B1 is the patta in the name of the defendant. Ex.B2 is the tax receipts, Ex.B3 is the patta register, Ex.B4 is the lease deed, dated 09.10.1993 and Ex.B5 is the lease deed, dated 09.01.1997. 8. By Judgment and decree dated 07.08.1998, the learned District Munsif, Periyakulam, examined the evidence on record and found that Ex.B1, the patta issued in the year 1984, it had been issued in the name of the defendant. It had been observed that Ex.B2 series are the tax receipts for the said lands. It had been stated that the lands have also been sub-divided into separate survey numbers. It had been therefore stated that oral partition had already been effected. It had been also stated that Pandi, in whose joint name, the suit property was purchased, was a minor, aged 7 years at the time of purchase of the lands. The learned Judge further held that since partition had already been effected and the defendant was in possession of the western half only as a lessee, the suit for partition would not lie. It was found that the suit relief was only for partition and not for possession and consequently, the learned District Munsif, dismissed the suit. A.S.No.97 of 1998: 9. Challenging the said findings, the plaintiffs filed the said appeal which came up for consideration before the Additional District Judge/Fast Track Court IV, Madurai. By Judgment dated 30.09.2005, the learned District Judge framed necessary points for determination. The first point which was framed for determination was, "(i) Whether there had been earlier oral partition and whether the defendant was in possession as lessee of the lands?" 10. The learned District Judge, reappraised the evidence and took note of the fact that in the written statement, the defendant had stated that the western half of 1.93 + cents had been allotted to Pandi and the Eastern 1.93 + cents had been taken up by him. In the written statement, it had not been specifically stated that there had been oral partition. It had only been stated that there had been only division of the properties into two separate halves. It had therefore been stated that the plaintiffs were entitled for partition and separate possession of the suit properties. In the written statement, it had not been specifically stated that there had been oral partition. It had only been stated that there had been only division of the properties into two separate halves. It had therefore been stated that the plaintiffs were entitled for partition and separate possession of the suit properties. Consequently, the learned Additional District Judge/Fast Track Court IV, Madurai, allowed the appeal and decreed the suit as prayed for. S.A(MD).NO.1037 of 2007: 11. The defendant Muthupandu Rayar had filed the present second appeal. As stated above, the appeal had been admitted and the following substantial questions of law had been framed: "(i). Whether the Lower Appellate court has not correctly appreciated the principle that only facts and not the evidence by which such facts are to be proved are to be pleaded? (ii). Whether the rejection of Ex.B1 to Ex.B3 by the Lower Appellate Court as evidence to prove prior partition is erroneous, capable of making the finding of the Lower Appellate Court perverse?" During the course of arguments, another substantial question of law was framed by consent of both the sides. The same is as follows:- (iii) Whether the suit in O.S.No.51 of 1995 is bad for non-joinder of necessary party and Whether the Lower Appellate Court should have considered that aspect?" 12. For the sake of convenience, the parties would be referred as Plaintiffs and Defendant. 13. Heard arguments advanced by Mr.A.Arumugam, learned counsel for the appellant/defendant and Mr.D.P.Sundararaj, learned counsel for the respondents/plaintiffs. 14. The plaintiffs, Pazhaniyammal and Sathishkumar are mother and son. The husband of the first plaintiff was Pandi. He was the son of Sangilipandu Rayar. Sangilipandu Rayar and the defendant Muthupandu Rayar were brothers. Sangilipandu Rayar deserted his wife Kamatchiammal and his minor son Pandi and left the place and thereafter, the defendant was in control of the family in his capacity as the paternal uncle of Pandi. The suit property was purchased by sale deed, Ex.A1 dated 04.03.1971 from Kamatchiammal W/o Mahalingapandu Rayar. It was purchased in the names of the defendant Muthupandu Rayar and minor Pandi, who was none other than his brother Sangili Pandu Rayar's son. 15. The suit property totally measured 3.87 acres. The sub-division was 1.44 acres in S.No.721/2, 1.22 acres in S.No.721/1 and 1.21 acres in S.No.723/2. The lands were situated in Kullapuram village, Periyakulam. They were agricultural lands. 15. The suit property totally measured 3.87 acres. The sub-division was 1.44 acres in S.No.721/2, 1.22 acres in S.No.721/1 and 1.21 acres in S.No.723/2. The lands were situated in Kullapuram village, Periyakulam. They were agricultural lands. Even according to the defendant, he had divided the lands into two halves. The western half measuring 1.93 + cents had been allotted to Pandi, the husband of the first plaintiff and the first defendant enjoyed the eastern half measuring 1.93 + cents. It was also stated in the written statement that the two properties were divided by a clear ridge. The western half was taken in possession by Kamatchiammal, W/o Sangilipandu Rayar and mother of Pandi. She leased out the same to the defendant. These documents had been filed in Court as Ex.B4 and B5, dated 09.10.1993 and 09.01.1997. 16. The learned District Munsif had held that there was an oral partition, which had already been effected and in this connection, had relied on Exs.B1, B2 and B3. Ex.B1 is the patta in the name of Muthupandu Rayar, Ex.B2 series are the tax receipts and Ex.B3 is the land register extract. The learned District Munsif, found that each survey number had been sub-divided. However, it is the grievance of the plaintiffs that partition had not been effected in its true sense and they were not put in actual possession of western half of 1.93 + cents. The learned District Munsif, dismissed the suit on the ground that the relief of possession had not been asked in the suit. This judgment had been reversed by the First Appellate Court. 17. The substantial questions of law which had been framed are whether Exs.B1, B2 and B3 would evidence prior partition. In this connection, it must be mentioned that though there had been division of the lands into two equal parts, the grievance of the plaintiffs is that they were not put in possession and they were actually denied income from the said lands. It is in this connection, that the third substantial question of law arises for consideration namely, whether non-joinder of necessary parties would be fatal to the suit. At the time of institution of the suit, the mother of Pandi - Kamatchiammal, was not joined either as a defendant or as plaintiff. She had a share in her son Pandi's share. 18. At the time of institution of the suit, the mother of Pandi - Kamatchiammal, was not joined either as a defendant or as plaintiff. She had a share in her son Pandi's share. 18. However, it is the admitted case of the defendant that the property had been divided into two equal halves. The western half had been specifically allotted to the plaintiff. The defendant was in enjoyment of the eastern half. The defendant further claimed right over the western half on the basis of the lease agreement in his favour. Since the parties themselves had divided the property into two equal halves, I hold that it would only be just and proper, that the Court also respects such division. The issue of non-joinder would pale into insignificance since it had not been informed as on date whether Kamatchiammal, is alive or not. Neither of the parties had enlightened the Court on that aspect. Even otherwise, the property has to be divided into two halves. One half will go to the family of Pandi, namely the plaintiff and the other half will go to the defendant Muthupandu Rayar. The inter-division among the sharers of the half allotted to Pandi, has to be decided among themselves. In so far as the defendant Muthupandu Rayar is concerned, he has himself accepted that he is entitled only to the eastern half of 1.93 + cents. The issues regarding lease and whether it is still subsisting are again matters in which there is insufficient evidence. 19. Consequently, I hold the Judgment and decree of the First Appellate Court will have to be upheld and the parties would have to file necessary application under Order XX Rule 12 of CPC to effect partition and separate possession. Non-joinder is not fatal to the facts of this case since Kamatchiammal, along with the plaintiffs would be entitled to a share in the western half of 1.93+ cents and not to a separate share. By her inclusion or exclusion, the share of the defendant namely, one half of the suit property would not change. Consequently, it does not lie in the mouth of the defendant to raise this as an issue. 20. In view of the above discussion, I hold that the second appeal has to fail and is accordingly, dismissed, however, in the circumstances, without costs. Consequently, it does not lie in the mouth of the defendant to raise this as an issue. 20. In view of the above discussion, I hold that the second appeal has to fail and is accordingly, dismissed, however, in the circumstances, without costs. The Judgment and decree of the First Appellate Court is upheld and the suit is decreed as prayed for. 21. Consequently, M.P (MD).No.1 of 2007 which had been filed for stay is closed.