Suit filed held not maintainable.

G. Ramanujam, J.

1. This second appeal was fully heard on 24th August, 1981, and judgment was reserved to this date. When the judgment was about to be pronounced, the learned Counsel appearing for the appellant represents that his client has taken away the papers from him and has withdrawn his authority to appear in this case and as such1 he is retiring from this case. Whatever be the position, since the appeal has been heard and judgment has been reserved, I proceed to deliver the judgment.

2. The plaintiff in O.S. No. 197 of 1972 on the file of the District Munsif, Srivaikuntam in the appellant herein. He filed the said suit for declaration of his title to items 1 to 10 of the plaint first schedule and for an injunction against the defendant restraining them from interfering with the plaintiff's possession thereof. His case as set out in the plaint was as follows :

He, the first defendant and one Rathinaswami Nadar, the husband of the second defendant, were brothers. They orally partitioned most of their common family properties in the year 1967 and in that partition, the plaint first schedule properties comprising 13 items were allotted to the plaintiff, the second schedule properties to Rathinaswami Nadar and the third schedule properties were allowed to the first defendant. From the date of the said partition, the parties have been in separate possession and enjoyment of the respective properties to the exclusion of others. The plaintiff had already sold items 11 to 13 of the plaint first schedule for necessity. In respect of items 4 to 10 in the first schedule, the plaintiff applied to the Tahsildar for subdivision and separate patta on 7th May, 1972, but the matter was not pursued thereafter. Though patta has not been issued for items 4 to 10 and patta has been issued only to items 1 to 3 of the first schedule, all those items were being enjoyed by the plaintiff by paying kist. Defendants 1 to 5 are acting in derogation of the plaintiff's title to items 1 to 10 from December, 1971, though they have no right, title or interest in the said items, and they have wrongly executed a gift deed on 20th August, 1964, in favour of the 6th defendant in respect of items 6 and 7 of the plaint first schedule. Since the defendants 1 to 5 have by their conduct cast a cloud on the plaintiff's title to items 1 to 10, the plaintiff is constrained to file this suit for declaration of title and for the consequential relief of injunction as against defendants 1 to 5 as also the 6th defendant which is a temple represented by its huqdar and the 7th defendant who claims to be its hereditary trustee.

3. The suit was resisted by defendants 1 to 5 raising the following contentions. They admitted the oral partition between the plaintiff on the one side and the first defendant and the defendants 2 to 5 on the other but resisted the suit contending that items 5 to 9 were not allotted to the plaintiff in that partition, that items 6, 7, and 8 of the plaint first schedule belonged to the 6th defendant and that items 5 and 9 were not allotted to the plaintiff that 43 cents out of item 5 was allotted to the first defendant and the balance of 1 acre was allotted to defendants 2 to 5 and that 17 cents out of 34 cents in item 9 which alone belonged to their family was allotted to the first defendant. Thus though the defendants 1 to 5 admitted the oral partition, they have denied the details of allotment put forward by the plaintiff in the suit.

4. The 6th defendant is an institution by name Kamattikottai Trivalagurusami Koil. Its case was that items 6 and 7 were allotted to the share of Manakavalamuthu, who is the plaintiff's paternal uncle, in a partition as between himself and the plaintiff's father, that Manakavalamuthu had made an oral gift of those items to the 6th defendant, that after the death of Manakavalamuthu, the 6th defendant has regularised the transaction by taking a sale deed as also a gift deed from defendants 1 to 5, who are the heirs