JUDGMENT : N. Sathish Kumar, J. 1. Aggrieved over the decree and Judgment of the Trial Court decreeing the suit for declaration and recovery of possession and also arrears of rent, the present appeal is filed by the un-successful defendants. 2. For the sake of convenience, the parties are referred to herein as per their ranking before the trial Court. 3. The case of the plaintiff, in brief, is as follows: (i) The plaintiff's husband viz., Arunachalam Chettiyar, first defendant and one Chidambaram Chettiyar are the brothers and sons of one NAR. N. Nachiappa Chettiyar. There was a partition between father and sons on 28.12.1942. By the said partition, "B" schedule properties referred in the partition deed were allotted to the share of the first defendant, besides undivided common portion of the house which could not be partitioned. After the partition, the said NAR. N. Nachiappa Chettiyar and sons were enjoying their respective partitioned portions of properties separately and using the undivided common portion as co-owners as they are not partible. (ii) One Vairavan Chettiyar of Kandanur filed a suit against the first defendant in O.S. No. 30 of 1958 on the file of District Munsif Court, Devakottai, for recovery of money and the said suit was decreed and execution proceedings were initiated, which ended in the sale of the first defendant's share in the common house property. It is stated by the plaintiff that the decree holder, being a stranger, was not aware of the actual partition of the house property between the father and sons. Therefore, the decree holder has attached 2/9th share of the first defendant in the entire property and brought to the sale of the said 2/9th share. The share mentioned was correct. In the court auction sale, the plaintiff purchased 2/9th share in the entire house property for Rs. 2,500/-, subject to three mortgages dated 18.05.1986, 20.06.1970 and 06.08.1971 and the auction sale was conducted on 23.06.1975 and the sale was confirmed on 28.07.1975. Thereafter, the plaintiff also took delivery of the undivided 2/9th share on 10.01.1976. Since the other sharers had owned distinct separate portion with the common enjoyment of undivided common portion, there was no need at all for the plaintiff to take any partition suit once over. Thereafter, the plaintiff also took delivery of the undivided 2/9th share on 10.01.1976. Since the other sharers had owned distinct separate portion with the common enjoyment of undivided common portion, there was no need at all for the plaintiff to take any partition suit once over. (iii) It is further contended that the execution and delivery proceedings would bind not only the first defendant but also his sons viz., defendants 2 to 6, who have been in continuous possession as members of a coparcener. The first defendant being the manager of the said joint family, the auction sale has become reached finality. After delivering the property, the first defendant and family members vacated the suit property and are residing somewhere else. Thereafter, the first defendant and his sons requested the plaintiff to reside in the property as tenants. Accordingly, the plaintiff has let out the said partitioned properties mentioned in "B" schedule of the partition deed and also all common properties as pertaining to 2/9th share, to the first defendant on fair rent of Rs. 300/- per year. It is the contention that it is not a lease for more than a year but for a year and the rent has been mentioned as consolidated amount for a year. The valid tenancy agreement was also executed. The plaintiff has been paying the house tax in her name. After the purchase of properties in Court auction, the plaintiff has also discharged the existing three mortgages. The first defendant has failed to pay the rent for the past three years despite repeated demands. Therefore, notice was sent to the first defendant on 22.06.1986 through her counsel, calling upon him to vacate the suit premises by 31.07.1986 and deliver the possession. Similar notice was also sent by Certificate of Posting. However, there was no reply by the first defendant. But, the first defendant dishonestly and fraudulently and illegally removed the Japan Marble stones affixed in walls as also the Big Belgium Glass fixed in Wall and marble stones laid in flooring, instead had plastered the flooring hand wall with Athangudi mosaic stones. Since the continuous possession of property by the first defendant is not desirable, the suit for declaration and the consequent delivery of possession and also arrears of rent. 4. The first defendant filed a written statement, which was adopted by the other defendants. Since the continuous possession of property by the first defendant is not desirable, the suit for declaration and the consequent delivery of possession and also arrears of rent. 4. The first defendant filed a written statement, which was adopted by the other defendants. The contention of the defendants is that after partition of the properties in the year 1942, it is in enjoyment of the first defendant. It is the contention of the first defendant that the plaintiff's husband was most interested towards the first defendant and his family and in order to save the properties from the creditors, mortgage deed was executed without any consideration and the same was executed only in order to prevent the sale by creditors. Similarly, the mortgage deed dated 30.06.1970 is also executed in favour of one Alagammai Aachi on 06.08.1981 and it is the contention that the above mortgage deed is executed without any consideration and it is sham and nominal document and the same has been executed at the instigation of the plaintiff's husband to save the property from the sale by the creditors. Admitting that the suit property was brought to sale in O.S. No. 30 of 1956 in E.P. No. 302 of 1970, it is the contention that only in order to save the plaint property from the purchase by third parties, for the benefit of the first defendant's family, the property was purchased in the name of the plaintiff by her husband. Accordingly, in order to create the records, delivery was also recorded. It is also denied that the defendants vacated the suit property. Alleged tenancy agreement as well as the validity of the tenancy agreement are also denied. Further, without filing an application under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the suit is not maintainable. Hence, he prayed for dismissal of the suit. 5. Based on the above pleadings, the following issues were framed by the trial Court: 1. Is it true that the property was purchased by the plaintiff in the Court auction? 2. Is it true that in the Court auction sale the plaintiff has purchased the property for the benefit of first defendant with the defendants money? 3. Whether the tenancy agreement is true and valid? 4. Whether the suit is barred by the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960? 5. Whether the suit is valid property? 6. 2. Is it true that in the Court auction sale the plaintiff has purchased the property for the benefit of first defendant with the defendants money? 3. Whether the tenancy agreement is true and valid? 4. Whether the suit is barred by the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960? 5. Whether the suit is valid property? 6. Whether the plaintiff is entitled to declaration and recovery of possession? 7. Whether the plaintiff is entitled to arrears of amount with interest? 8. Whether the plaintiff is entitled to mesne profits in the damages? 9. Whether the suit property belonged to the plaintiff? 10. To what other reliefs? 6. On the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs. A1 to A27 were marked. On the side of the defendants, the first defendant himself was examined as D.W.1 and no document was marked. 7. On the basis of the evidence and materials available on record, the Trial Court decreed the suit in favour of the plaintiff, as against which, the present appeal is filed. 8. The learned senior counsel appearing for the appellants submitted that the suit building is a heritage building declared by UNESCO and it cannot be altered by demolishing. It is the contention that even after the partition in the year 1942, dining Hall and Courtyard kept in common and only certain rooms were allotted to the parties. Accordingly, "B" schedule property shown in the partition deed - Ex. A1 was allotted to the first defendant. It is the contention of the first defendant that Vairavan Chettiar filed a suit in O.S. No. 30 of 1958 on the file of the District Munsif Court, Devakottai and the same has been decreed, in which, the property was attached and in the execution proceedings in E.P. No. 302 of 1970, the un-divided 2/9th share of the first defendant was brought for sale. It is the contention that admittedly, the properties were already partitioned. Whereas, in the Court auction sale, only un-divided share was purchased by the plaintiff. It is the contention that such sale deed is sham and nominal and only in order to prevent the property being purchased by the third parties, the husband of the plaintiff has created a mortgage deed and purchased the property only for the benefit of the first defendant. It is the contention that such sale deed is sham and nominal and only in order to prevent the property being purchased by the third parties, the husband of the plaintiff has created a mortgage deed and purchased the property only for the benefit of the first defendant. It is the contention that the Court auction was subject to the mortgages and those mortgages were also created without any consideration, that too, only for the purpose of saving the properties. 9. It is further contended that the alleged tenancy agreement Ex. A14 said to have been executed by the first defendant is not admissible in evidence, since it is an un-registered agreement. Recitals in the document correctly shows that yearly rent was fixed. Such being the position, the above document cannot be looked into for any other purpose, since it is an un-registered one. 10. It is his further contention that the first defendant is in possession of the property from the year 1942 after partition. Thus, it is contended that having purchased the un-divided share, the plaintiff now cannot seek for declaration for definite share, which was already allotted to the first defendant in the year 1942. Therefore, the above suit is not maintainable. 11. It is further contended that all the documents were created only for the purpose of saving the family property without any consideration. It is his further contention that the Court auction for undivided property is not valid in the eye of law, since the properties have already been partitioned. The alleged delivery of 2/9th share is also denied. Attachment of un-divided share is also not valid. The suit is bad for non-joinder of the other co-owners. Hence, his contention is that the execution of Ex. A14 is also not true and the suit for declaration and the tenancy rights cannot be clubbed together. 12. It is his contention that the tax has been paid on behalf of the first defendant under Exs. A8 to A13. Further, the evidence of D.W.1 clearly indicates that the plaintiff has been continuously collecting the amount from the tenant. The property purchased in Court auction, subject to the mortgages, hence, without proving the discharge of mortgages, the plaintiff cannot claim absolute title. A8 to A13. Further, the evidence of D.W.1 clearly indicates that the plaintiff has been continuously collecting the amount from the tenant. The property purchased in Court auction, subject to the mortgages, hence, without proving the discharge of mortgages, the plaintiff cannot claim absolute title. The plaintiff having failed to show that she has taken a specific item of the suit property in delivery, now she cannot seek declaration for the property, which was divided already. There is a mis-joinder of cause of action and the first defendant is also entitled to the suit property and the suit is liable to be dismissed. The trial Court has not appreciated these facts properly and hence, he prayed for allowing the appeal. 13. In support of the above submissions, the learned Senior Counsel has relied upon the following Judgments: 1. AIR (37) 1950 Madras 760 (Govindanathan Vs. Anjaneya Pandithan and others). 2. CRP(PD). No. 4591 of 2013, dated 24.04.2019 (Narayana Naicker and others Vs. Kannusamy Naicker and others (-reported at 2019-3-L.W. 19) 3. 2001-1-L.W. 257 : 2001 (1) CTC 112 (A.C. Lakshmipathy and another Vs. A.M. Chakrapani Reddiar and five others). 14. Whereas, it is the contention of the learned counsel appearing for the second respondent that under Ex. A1, the entire property divided into 4 1/2 parts between father and three sons and 1/2 part to father and the three sons each took one part, wherein "B" schedule property was allotted to the first defendant. The father and three sons were enjoying the property separately using un-divided portion, which is not in dispute. It is also not in dispute that the suit property was brought for sale and the un-divided share of the first defendant was brought for sale in the suit filed by one Vairavan Chettiyar. In the above suit, in execution application in E.A. No. 7 of 1976 in E.P. No. 302 of 1970, the undivided share of the first defendant was purchased on 10.01.1976. The first defendant has vacated the property and thereafter, executed the agreement under Ex. A14, dated 18.02.1978. The Court auction sale was subject to the existing mortgages. The plaintiff has discharged all the mortgages, in this regard, Exs. A1 to A20 have been filed by the plaintiff. But, whereas, no documents were marked by the defendants. The first defendant himself admitted in Ex. A14, dated 18.02.1978. The Court auction sale was subject to the existing mortgages. The plaintiff has discharged all the mortgages, in this regard, Exs. A1 to A20 have been filed by the plaintiff. But, whereas, no documents were marked by the defendants. The first defendant himself admitted in Ex. A3 that his creditors have advanced the loan, therefore, the question of creating sham and nominal document does not arise at all. The delivery report also signed by the first defendant and his sons. The receipt filed by the plaintiff has clearly established that the entire mortgage is discharged. No materials available on record to show that those documents are created. Ex. A14 - though it is not a registered document, the monthly lease can be presumed. It is his contention that there is no mis-joinder of cause of action. The suit has been filed for declaration of title as the defendants have denied the title. Therefore, the trial Court has considered all these facts and rightly decreed the suit, which needs no interference at the hands of this Court. 15. In support of the submissions, the learned counsel for the respondents has placed reliance upon the following Judgments: 1. AIR 1961 SCC 1655 (V 48 SC 312) (Javer Chand and others vs. Pukhraj Surana) 2. 1922 Privy Council 252 (Ramabhadru Naidu Vs. Kediriyasamy Naicker) 3. 2007-4-L.W. 1 : 2007 (2) SCC 551 (Prem Lala Nahata and another Vs. Chandi Prasad Sikaria). 16. In the light of above submissions, points that arose for consideration in this appeal are as follows: (i) Whether the purchase of 2/9th share by the plaintiff in the suit property entitles her to get the relief of declaration and recovery of possession, which was specifically allotted under Ex. A1-partition deed, much prior to the attachment of the sale of the property? (ii) Is it true that the plaintiff has obtained clear title on the basis of sale which is subject to prior mortgages? (iii) Whether the suit is bad for mis-joinder of cause of action? (iv) Whether the Civil Court has jurisdiction to entertain the suit, in view of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960? (v) To what other relief? 17. The suit property and the larger extent of house property originally belonged to one NAR. N. Nachiappa Chettiyar. He had three sons. This fact is not disputed. (iv) Whether the Civil Court has jurisdiction to entertain the suit, in view of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960? (v) To what other relief? 17. The suit property and the larger extent of house property originally belonged to one NAR. N. Nachiappa Chettiyar. He had three sons. This fact is not disputed. The property was partitioned among themselves in the year 1942 except dining Hall and Courtyard which were kept in common. To prove the said fact, Ex. A1 was filed. A perusal of Ex. A1 makes it clear that there was a partition between the father and three sons. In the above partition, "B" schedule property shown in Ex. A1 was allotted to the first defendant herein. This fact is not disputed by the parties. The plaintiff is the wife of Arunachalam Chettiyar, who is the brother of the first defendant. The parties belong to the community of 'Nattukkottai Chettiyar'. It is the practice in the above community that house properties will be divided keeping the common area open for an enjoyment of the co-owners. Accordingly, dining Hall and common area have been kept open as un-divided and only the rooms were allotted specifically to all the sons. This fact is not in dispute. 18. It is the case of the plaintiff that after the partition, the parties were enjoying the properties and the three sons of Nachiapa Chettiyar were enjoying the respective partitioned portion of the properties and using the common undivided share, which are not partible. One Vairavan Chettiyar of Kandanur has filed a suit against the first defendant in O.S. No. 30 of 1958 for recovery of money. In the above suit, execution proceedings were taken out and 2/9th share of the first defendant in the entire property subject matter of Ex. A1 were attached and brought for sale. The plaintiff has purchased the property subject to three earlier mortgages created by the first defendant. The contention of the plaintiff is that ever since the date of partition, the father and sons are enjoying the partitioned property and using the undivided partition portion which is not partible. The same is not disputed in the entire written statement. 19. Similarly, on filing of the suit by the third party, attachment made in respect of 2/9th share of the first defendant in the house property is also admitted. The same is not disputed in the entire written statement. 19. Similarly, on filing of the suit by the third party, attachment made in respect of 2/9th share of the first defendant in the house property is also admitted. The purchase of 2/9th share in the entire house property by the plaintiff's husband in the Court auction is also not disputed. These are admitted facts. Whereas, it is the specific contention of the defendants that the plaintiff's husband was interested in the family of his brother, hence, in order to prevent the property being sold away in Court auction, he has created a mortgage deed in his favour for a sum of Rs. 25,000/-. Similarly, the other mortgage was also created in favour of one Alagammai Aachi. Ex. A2 has been filed to show that the first defendant has mortgaged the property in favour of one Alagammai Aachi on 30.06.1970. Ex. A3 is the another mortgage deed executed in favour of Nachiappa Chettiyar. Similarly, under Ex. A17, the first defendant has executed a mortgage deed in favour of the plaintiff's husband for a sum of Rs. 25,000/-. It is the contention of the first defendant that those mortgages were created only in order to protect the family property and the property has been purchased in the name of plaintiff as the plaintiff hold the property as a Trustee, the property has been purchased for the benefit of the first defendant. When the said plea is taken by the first defendant, burden lies on him to establish that the property has been purchased by the plaintiff as trustee or she was standing in the fiduciary capacity. Therefore, it is for the first defendant to establish that the plaintiff was a Trustee or plaintiff was in fiduciary capacity. 20. On perusal of the written statement, it is seen that except stating that the elder brother was showing some interest towards the family of the first defendant, the first defendant has not pleaded as to how either the plaintiff or her husband was acting as a Trustee or standing in a fiduciary capacity at the relevant point of time. It is to be noted that the parties already partitioned the property as per Ex. A1. The husband of the plaintiff and the defendants partitioned the property and they have been enjoying the properties separately except the common area. It is to be noted that the parties already partitioned the property as per Ex. A1. The husband of the plaintiff and the defendants partitioned the property and they have been enjoying the properties separately except the common area. Such pleading is not even denied in the written statement. Therefore, when the pleadings show that the parties are enjoying their properties separately and residing separately, the question of plaintiff and her husband standing in a fiduciary capacity nor acting as Trustee does not arise. In any event, it is for the first defendant to establish that the properties have been purchased in such capacity. 21. It is the case of the first defendant that Exs. A2, A3 and A17 mortgage deeds were executed without any consideration and those documents are sham and nominal. On perusal of the above documents, it is seen that the first defendant has executed those documents after receiving the consideration. In this regard, Exs. A2, Ex. A21 to 24 books of accounts were filed by the plaintiff. Further, D.W.1 also admitted that Ex. A17 mortgage deed executed by him in favour of the plaintiff's husband and he has also received the mortgaged amount. Similarly, he has also admitted in his evidence that he has received the mortgaged amount under Ex. A2 from the mortgagee. Further, no documents whatsoever filed by the first defendant to show that he has discharged the mortgages. He has also admitted in the examination that even in the Court auction sale, the amount has been paid by the plaintiff. He has stated in his evidence that later he has paid the said amount, however, same has not been substantiated by any materials. He has also admitted that the property was delivered and in the delivery report, he and his sons were signed. Similarly, in the cross examination, he has categorically stated that when the delivery was effected, Ex. A14 was executed on the same date of delivery of possession. The same is found to be false, for the simple reason that the delivery was effected as per Ex. A5 on 10.01.1976. It is the case of the first defendant that on the same date lease agreement came to be executed. It is to be noted that Ex. A14 came into existence in the year 18.02.1978 and the stamp paper was purchased in the year 1978. A5 on 10.01.1976. It is the case of the first defendant that on the same date lease agreement came to be executed. It is to be noted that Ex. A14 came into existence in the year 18.02.1978 and the stamp paper was purchased in the year 1978. Therefore, the contention of the defendants that Ex. A14 tenancy agreement also came in to existence on the same date of delivery cannot be countenanced. 22. It is the specific case of the plaintiff that after delivery is effected, the first defendant has vacated the property and was residing in sister in law's house and thereafter, on his request, he was inducted as tenant in the year 1978. The Stamp Paper also purchased in the year 1978. It is further to be noted that Exs. A6 to A20 filed to show that the mortgaged amount has been paid to the mortgagees by the plaintiff. If really the documents were created without any consideration and the same are sham and nominal, these documents should have been with the possession of the defendants. Whereas, the documents have been filed by the plaintiff with relevant receipts signed by the mortgagees. One of the Mortgagees is a third party. The mortgaged amount has been discharged by the plaintiff and in fact, the auction sale itself is subject to the mortgages. The plaintiff has proved the same by Exs. A6, A7, A18 and A20 receipts for discharge of the loan amount. The concerned mortgagees have signed the receipts. This fact clearly indicates that the mortgaged amount is also discharged by the plaintiff and the endorsement signed by Alagammai Aachi, one of the mortgagees, is also filed. When the evidence of D.W.1 itself clearly indicates that he has received the mortgaged amount under the above documents and even the sale amount is also paid by the plaintiff, now, he cannot contend that those documents are sham and nominal. Further, there is no evidence available on record to prove the alleged discharge of mortgaged amount as well as sale consideration by the first defendant. D.W.1 also admitted that when Amin came to effect delivery he signed the delivery report. Further, there is no evidence available on record to prove the alleged discharge of mortgaged amount as well as sale consideration by the first defendant. D.W.1 also admitted that when Amin came to effect delivery he signed the delivery report. If really mortgage deed were discharged by the defendants, the original mortgage deeds must be with the defendants, but, whereas the same have been filed by the plaintiff and she has discharged the amount to the mortgagees and got the signature, which has also been proved. Similarly, P.W.2, the husband of the plaintiff also examined. Details of loan advanced also mentioned in the books of accounts maintained by him in Ex. A17. The defendants have not disputed Exs. A21 to A24 filed by the plaintiff. 23. Even, in the cross examination, the first defendant has admitted that books of accounts Exs. A21 to 24 relate to Ex. A2. The documents filed by the plaintiff clearly established that the plaintiff has purchased the property in Court auction and took the delivery under Ex. A5 and also discharged the existing mortgages. Similarly, the fact that amount has been paid to the mortgagees as per Exs. A25 to A27, which were filed by the plaintiff, as already discussed, is not disputed by the first defendant in the cross examination. P.W.2 has also spoken about the manner in which the amount mobilized and paid to the first defendant, which is also found place in Exs. A21 to 24. This fact is not seriously disputed by the defendants. 24. Besides, when he sets up benami transaction that the property was purchased as a Trustee or person standing in a fiduciary capacity for the benefit of the defendants, the defendants have to establish the relationship, i.e., the plaintiff was in a position to dominate the will of the first defendant. Absolutely, there is no evidence in this regard to show that either the plaintiff or her husband are dominating the defendants at the relevant point of time standing in fiduciary capacity. Therefore, the contention that property has been purchased in her name for the benefit of the first defendant cannot be countenanced in the absence of any evidence in this regard. When the plaintiff has proved the consideration for sale and also discharged the mortgage by evidence, the contention of the defendants that the documents are sham and nominal cannot be countenanced. When the plaintiff has proved the consideration for sale and also discharged the mortgage by evidence, the contention of the defendants that the documents are sham and nominal cannot be countenanced. The delivery of the suit property by Amin to the plaintiff through process of Court auction is also admitted and Ex. A5 proves the same. The first defendant himself admitted that he has signed all the documents including delivery report and sons have also signed. If really those documents are sham and nominal and the first defendant was enjoying the property, he ought to have filed the revenue records in his name. No papers filed to show that defendants were exercising any right over the property, even after the delivery was effected in the year 1976, whereas the plaintiff has paid tax under Exs. A8 to A13. All these facts clearly disprove the contention put forth by the defendants. 25. The learned senior counsel appearing for the appellants submitted that only undivided share has been purchased in the Court auction. Therefore, the suit filed for declaration is not maintainable. It is to be noted that a stranger to the family filed a suit for recovery of money and he attached the share of the first defendant in the entire property of 2/9th share. The quantum of share which the first defendant entitled is not disputed. When a stranger to the family has filed the suit, naturally he would not have had the idea about the earlier partition in the family. Therefore, he has sought an attachment in respect of 2/9th share of the first defendant. The defendants entitlement of quantum of share has not been disputed. The suit property has already been partitioned in the earlier document. Such view of the fact, merely because un-divided share sold in the Court auction, it cannot be contended by the defendants that such sale will not give a right seeking declaration for the property which was already divided. 26. It is to be noted that though first defendant's undivided share is 2/9 sold in the Court auction, such share has already been allotted under Ex. A1 to the first defendant. Such being the case, merely because the Court auction sale for undivided share, same would not validate the right and interest of the parties who acquired title already. 26. It is to be noted that though first defendant's undivided share is 2/9 sold in the Court auction, such share has already been allotted under Ex. A1 to the first defendant. Such being the case, merely because the Court auction sale for undivided share, same would not validate the right and interest of the parties who acquired title already. It is not the case of the defendants that the property is not partible and it would fall within the shares of the other co-owners. Though un-divided share was sold under Ex. A5 in Court auction, property was identified and delivered, the delivery report was signed by the first defendant and the sons. 27. Admittedly, under Ex. A1, the plaintiffs share and the first defendant's share in the property have been divided except the common area. The first defendant's property has been identified and delivery was effected. Such being the position, this Court is of the view that in the absence of any evidence to show that his allotted share is not the subject matter of sale certificate and the property allotted under Ex. A1, is different one, the contention of the learned Senior counsel for the appellant cannot be countenanced. 28. The further contention of the defendants is that under Ex. A14 yearly rent is reserved and therefore, the same is require compulsory registration. The same is not admissible in evidence under Section 17 of the Registration Act. 29. The learned senior counsel appearing for the appellants mainly relied upon the Judgment of this Court reported in 2001-1-L.W. 257 : 2001 (1) CTC 112 (A.C. Lakshmipathy and another Vs. A.M. Chakrapani Reddiar and five others), wherein it is contended that unregistered document cannot be received in evidence even for a collateral purpose. Similarly, in CRP(MD). No. 4591 of 2013, dated 08.04.2019 (Narayana Naicker and others Vs. Sornam and others - reported at 2019-3-L.W. 19), this Court held that un-registered partition deed document affecting the immovable property cannot be received in evidence. This Court has also held that a collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with that transaction. The above Judgment is not applicable to the facts of the present case. Here, in this Case, the document is reserving yearly rent. 30. This Court has also held that a collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with that transaction. The above Judgment is not applicable to the facts of the present case. Here, in this Case, the document is reserving yearly rent. 30. The Hon'ble Supreme Court in the Judgment reported in 2016 (9) SCC 268 (Park Street Properties Private Limited Vs. Dipak Kumar Singh and another), following the Judgment of Hon'ble Supreme Court reported in 2006 (6) SCC 394 (Anthony Vs. K.C. Ittoop and sons, has held that in the absence of registration of a document, what is deemed to be created is a month-to-month tenancy, the termination of which is governed by Section 106 of the Transfer of Property Act. 31. When the execution of the document is not disputed and the first defendant is not able to show that he was continuously in possession from the date of partition deed, even after delivery taken by the Amin under Ex. A5, the plaintiff's contention that the first defendant was re-inducted to the possession has to be accepted by this Court, furthermore, in view of the fact that the documents stand in favour of the plaintiff, Ex. A14 cannot be questioned, and the Stamp Duty Penalty is also collected, as can be seen from the above document. Therefore, the contention that Ex. A14 cannot be admitted in evidence also cannot be countenanced. At any event, the suit has been filed for declaration and recovery of possession within 12 years from the date of auction sale. The plaintiff, being a title holder, is certainly entitled to file a suit for recovery of possession within 12 years. Since the title is already with the plaintiff, he seeks the relief for recovery of possession. Therefore, the plaintiff cannot be non-suited. 32. Similarly, it is the contention of the appellants that the suit is bad for mis-joinder of cause of action. It is to be noted that in the entire written statement, there is no whisper about the plea or objections raised as to the mis-joinder of cause of action. It is relevant to note that all objections of the mis-joinder of cause of action shall be taken as early as possible in all the cases. It is to be noted that in the entire written statement, there is no whisper about the plea or objections raised as to the mis-joinder of cause of action. It is relevant to note that all objections of the mis-joinder of cause of action shall be taken as early as possible in all the cases. As per Order 2 Rule 7 of the Code of Civil Procedure, all objections on the mis-joinder cause of action shall be taken at earliest possible opportunity and in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived. When the plea has not been raised by the plaintiff, the same cannot be raised in the appeal. As per Section 99 of the Code of Civil Procedure, no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. 33. The learned counsel also relied on the Judgment of this Court reported in AIR (37) 1950 Madras 760 (Govindanathan Vs. Anjaneya Pandithan and others) wherein it is held as follows: "4.......I have no hesitation in finding that the two causes of action blended in the present plaint, although alternative, are clearly distinct, separate and antagonistic and that the son cannot seek relief on the basis of adoption with his natural father seeking a separate relief in the same suit on the basis of no adoption." 34. In the above circumstances, the Court has held that there is mis-joinder of partition and cause of action. The above judgment is not applicable to the facts of the present case. 35. In the Judgment reported in 2007-4-L.W. 1 : 2007 (2) SCC 551 (Prem Lala Nahata and another Vs. Chandi Prasad Sikaria), in paragraph No. 15, the Ho'nble Supreme Court held that an objection of mis-joinder of plaintiffs or mis-joinder of causes of action, is a procedural objection and it is not a bar to the entertaining of the suit or the trial and final disposal of the suit. Chandi Prasad Sikaria), in paragraph No. 15, the Ho'nble Supreme Court held that an objection of mis-joinder of plaintiffs or mis-joinder of causes of action, is a procedural objection and it is not a bar to the entertaining of the suit or the trial and final disposal of the suit. The Court has liberty even to treat the plaint in such a case as relating to two suits and try and dispose them of on that basis. 36. In the absence of objection as to mis-joinder of cause of action in the written statement, the suit cannot be dismissed on the ground of mis-joinder of cause of action, as contended by the defendants. It is to be noted that the first defendant has denied the tenancy from the inception and he has taken the plea that the document was sham and nominal and he sets up an independent right. When the first defendant sets up an independent right, the question of approaching the Rent Controller does not arise at all. Be that as it may, as the title is denied and the first defendant set up an independent title, civil suit is not barred for declaration and recovery of possession based on title. 37. It is one more main contention that the suit property is a heritage building and it cannot be altered as it was declared by UNESCO. It is to be noted that keeping the common area un partible is the practice of particular community. Such being the fact, even the plaintiff cannot alter such arrangements in their family. They have to enjoy the common area, as agreed in the partition deed. Accordingly, all the points are answered. 38. In the result, the Appeal Suit is dismissed. Considering the relationship between the parties, there is no order as to costs.