First appellate court done erroneous approach in deciding the appeal.

1. Second Appeal No.1360 of 1988 arises out of O.S.No.163 of 1985 and Second Appeal No.1361 of 1988 arises out of O.S.No.227 of 1985, both the suits on the file of the Subordinate Judges Court, Sankari.

2. Suit O.S.No.163 of 1985 was for declaration that the plaintiffs therein were entitled to the suit property and for permanent injunction restraining the defendants and their men from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit property. O.S.No.227 of 1985 was for a permanent injunction restraining the defendants therein, their men, servant, and agent from in any way interfering with the peaceful possession and enjoyment of S.No.31/1A by the plaintiffs.

3. The plaintiffs, 1, 2, 4 to 6 in O.S.No.163 of 1985 are the appellants in S.A.No.1360 of 1985. They were defendants 2, 1, 4, 6 and 7 in O.S.No.227 of 1985. The respondents in S.A.No.1360 of 1985 were the defendants and the third plaintiff in O.S.No.163 of 1985 and they were respectively defendants 3, 5 and 8 in S.A.No.1361 of 1988.

4. The short point for consideration in both the appeals, as stated by the learned senior counsel for the appellants, is as to the mode of division and enjoyment of the properties by the parties. It is necessary to have a genealogical table for proper appreciation of the dispute between the parties. A genealogical tree is given in the printed judgment of the lower appellate court and the same is extracted below:

5. For purposes of the present discussion the reference to the parties will be as per the ranks in O.S.No.163 of 1985. There were three brothers Sengoda Gounder, Kumarasamy Gounder and Sellappa Gounder. We are not concerned with the the branch of Sengoda Gounder, Kumarasamy Gounders son was Palani Gounder, who had two sons: (1) Pachaiyannan and (2) Kumarasamy and this Kumarasamy is the first defendant. Pachaiyannas son is one Palanimuthu, who is the second defendant and the widow of Pachaiyannan, Pavayee Ammal is the third defendant. Sellappa Gounders sons were Nallaiya Gounder, Pachaiyan, Chinna Gounder and Palani Gounder. Nallaiya Gounders son Thangamuthu alias Sellappa Gounder is the second plaintiff. Pachaiyans son-in-law Sengoda Gounder is the first plaintiff. Chinna Gounders heirs Kandappa Gounder and Nalla Gounder are plaintiffs 3 and 4. Plaintiff No.5 is the second wife of Palani Gounder and plaintiff No.6 is the son. They claimed under Palani Gounder. The genealogy is not disputed.

6. The plaintiffs case is that about 17 years prior to the suit, in or about 1965-66, there was an oral partition between the defendants on the one hand and the plaintiffs on the other. In the said partition it was agreed that the northern 2 acres of land marked in RED colour in the plaint rough plan should be allotted to the defendants and the southern 2 acres to the plaintiffs. This extent should be further divided into four shares of half and acre each marked in the plain rough plan, in green. It was also specifically agreed that the portion marked ‘A’ should be allotted to the first plaintiff, the portion marked ‘B’ should be allotted to the second plaintiff, the portion marked ‘C’ should be allotted to plaintiffs 3 and 4 and the portion marked ‘D’ to be allotted to plaintiffs 5 and 6. It was so agreed and accepted, and possession of the respective shares was also taken immediately after the said oral partition. Ever since each of the sharers was in possession and enjoyment of the properties allotted to him separately in his own right and to the knowledge of everybody including the defendants. The plaintiffs reclaimed their land, levelled the same and closed the pits and were cultivating the same. The fourth plaintiff had also put up a power loom factory in his land, which was in or about 1979. There was a high tension power line running across the portion marked A and B. It was only plaintiffs 1 and 2 who had expressed their objection for such a power line to be taken and the telephone line t