The first respondent filed a suit for partition and for declaration of easementary right of the suit mentioned pathway on the following allegation.

2. The plaintiff and the first defendant are the sons of the deceased Chinnasamy Padayachi and as between these 3 coparceners, a partition had taken place by virtue of a registered partition deed dated 4.2.76 when Chinnasamy was alive; that two items of properties mentioned in the schedule were allotted to the share of Chinnasamy and 'A' schedule to be partitioned by the 2 sons after the time of Chinnasamy, while 'B' and 'C' schedules of properties were allotted to the share of 2 sons as per the deed; that after the death of Chinnasamy, the suit properties are being enjoyed by the plaintiff and first defendant as co-owners without any partition and they are in joint possession; that the 2nd defendant is the brother's son of the said Chinnasamy Padayachi i.e., paternal uncle's son of the plaintiff and the first defendant; that between the 2nd defendant's father by name Vaiyapuri Padayachi and Chinnasamy Padayachi, there was a oral partition some 50 years back; that in the suit locality, 2nd defendant has also owned properties