This appeal is focussed as against the judgment and decree dated 210. 2002 passed by the III Additional Judge, City Civil Court, Chennai in O.S.No.4879 of 1997, which is a suit for partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.

2. The parodying and portrayal of the case of the plaintiffs, succinctly and precisely, as stood exposited from the plaint would run thus:

a) One Late Madurai Chetty and his second wife Ammakannu gave birth to two children, viz., Kristappa Chetty, the father of the defendants herein and Elumalai Chetty, the father of the plaintiffs herein. The said Madurai Chetty acquired four house properties of which, two are described in the schedule of the plaint. Madurai Chetty executed a Settlement Deed dated 18.09.1926 in respect of all his four house properties with the stipulation that the two properties described in the schedule of the plaint should be enjoyed by his second wife Ammakannu and his two sons during their life time and the male issues of Madurai Chettys sons should enjoy those properties absolutely. The said Ammakannu died and Madurai Chettys two sons, viz., Elumalai chetty and Kristappa Chetty died on 212. 91 and 30.11.91 respectively. Consequent upon the death of the two sons of Madurai Chetty, the plaintiffs and defendants, being the descendants of them, became the owners of the properties described in the schedule of the plaint. The other two properties not specified in the schedule of the plaint were dealt with by Elumalai Chetty and Kristappa Chetty and they disposed them of, over which, there is no controversy.

b) During the life time of Elumalai Chetty and Kristappa Chetty, the plaintiffs, even though happened to be the sons of Elumalai Chetty were denied enjoyment of the scheduled mentioned properties; whereupon O.S.No.6794 of 1988 was filed in the Court of VIII Assistant Judge, City Civil Court, Madras for rendition of accounts, for permanent injunction and for other incidental reliefs. During the pendency of such previous suit, Elumalai Chetty and Kristappa Chetty died. Subsequently, the suit was withdrawn by both of them as the same has become infructuous. After the death of Elumalai Chetty and Kristappa Chetty, the plaintiffs and the defendants have been enjoying the suit properties. Owing to family circumstances, the plaintiffs inducted the tenants into the suit properties and they are in possession on behalf of the plaintiffs. The incessant demands by the plaintiffs to the defendants for amicable partition evoked no positive response from them, which necessitated the plaintiffs to file the suit for partition.

c) The plaintiffs parents are Elumalai Chetty and Rajeswari Ammal whose marriage took place on 23.02.1956 according to Hindu Rites and Customs and during the wedlock, the first and the second plaintiff were born in the year 1957 and 1960 respectively. Misunderstanding crept in the relationship between the plaintiffs father and mother and their father drove out their mother from the matrimonial house and neglected to maintain her and the plaintiffs, who were minors at that time. Consequently, the plaintiffs mother filed M.C.No.745/62 as against Elumalai Chetty, before the V Presidency Magistrate Court, which Court ordered maintenance on 19.05.1962. Elumalai Chetty was paying maintenance to Rajeswari Ammal till her death on 15.04.1978.

Accordingly, they prayed for decreeing the original suit.

3. Remonstrating and refuting, controverting and contradicting, the allegations/averments in the plaint, the defendants filed the written statement with various averments, the warp and woof of them would run thus:

a) The previous suit O.S.No.6794/88 referred to in the plaint was dismissed for default at the trial stage for non-prosecution; whereupon the plaintiffs filed a petition for setting aside the order of dismissal of the said suit along with I.A.No.11665/92 for getting the 194 days delay