Ramaswami, J.- ‘The first defendant is the appellant. The suit was filed by respondents 1 to 4 for partition and separate possession of their 4/5th share in the plaint schedule properties which consisted of two items. The first item is a pucca house bearing door No. 3/135 and comprised in T.S. No. 10/2191 of Kattur village in Coimbatore town. The second item is given as vacant site measuring 51 cents forming part of T.S. No. 1771/1-A and situate in Pankaja Mills Road, Coimbatore. The appellant and respondents 1 to 4 are hrothers, the appellant being the eldest. The respondents in their plaint stated that they and the first defendant have been living for a considerable time separately each following his own avocation and calling but they have not divided the joint family properties by metes and bounds. Item 1 in the schedule is the ancestral family house in which the plaintiffs are living separately with their own families in different portions. The first defendant has also retained for his own use a portion of the said item. Item 2 is a vacant site measuring 51 cents situate in Pankaja Mills Road. The first defendant appears to have put up some tiled flimsy structures in some portion of the site. He is residing with his family in a structure in a portion of the site and has rented out the other portions without reference to the plaintiffs and without any right or authority to do so. The plaintiffs claim that they are entitled to vacant possession after removal of the superstructure. On these allegations the plaintiffs sought a decree for partition of their 4/5th share in both the items.

2. In the written statement filed by the appellant herein he stated that in an oral partition some time 30 years ago before 1964, the first defendant became separated and item 1 properties were allotted to the plaintiffs and item 2 which was an unproductive vacant land with a number of sites was allotted to him for his share and that the first defendant was driven out of the family house and thereafter the first defendant had nothing to do with the family or its properties or the income therefrom. He also pleaded that by his own exertions by doing cooly work and a small milk vending business he earned some income and with that he put up the buildings on item 2 which was allotted to his share in the said oral partition. The cost of these constructions was stated in the written statement as Rs. 20,000. The defendant also denied that he retained any portion in the first item for his own use and characterised the assertion in the plaint in regard thereto as a deliberate falsehood and asserted that the plaintiffs alone are in possession and enjoyment of the entire house. The second defendant remained absent and was set ex parte.

3. The trial Court came to the conclusion that the first defendant had not proved the oral partition pleaded by him and that, therefore, the plaintiffs are entitled to the partition as prayed for. So far as the superstructures on item 2 are concerned, it was found that the first defendant constructed the same at his own cost and that, therefore, in the final decree proceedings the allotment should be made in such a way so as to make the buildings fail to the share of the first defendant, and if this was not possible a Commissioner will have to be appointed to suggest suitable compensation for the buildings.

4. In this appeal, the learned Counsel For the appellant submitted that the admitted long course of conduct of the parties clearly showed that there should have been an oral partition as contended for by the appellant and that only in assertion of his title as per the oral partition, the appellant could have built all the superstructures. As already stated, the superstructures were built by the appellant and this was admitted by the plaintiffs-respondents even in the plaint. In the oral evidence of P.W. 1 he had stated that the appellant had been in possession of item 2 for more than 20 years, that at that time when he came

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