The admissibility of the partition deed and its role in proving the oral partition preceding it were central to the court's decision.

S. NAGAMUTHU, J.

1. The suit in O.S. No. 21 of 1999 on the file of the learned Principal District Munsif, Gingee was filed by the respondent herein. One Mr. Subramaniya Udayar was the sole defendant in the suit. The said suit was filed for declaration of title and for recovery of possession of "B" schedule property. The learned Principal District Munsif by decree and judgment dated 30.04.2008 dismissed the suit. As against the same, the respondent herein filed an appeal in A.S. No. 28 of 2008 before the learned Subordinate Judge, Gingee. During the pendency of the said appeal, the sole defendant Mr. Subramaniya Udayar passed away and therefore, the appellants 1 to 6 herein were brought on record as the legal representatives of Mr. Subramaniya Udayar. The First Appellate Court by decree and judgment dated 30.09.2011 allowed the appeal thereby setting aside the decree and judgment of the trial Court and decreed the suit as prayed for. Challenging the same, the appellants are before this Court with this second appeal.

2. This appeal has come up today for admission after repeated adjournments. I have heard the learned counsel for the appellants and the learned counsel for the respondent and I have also perused the records carefully.

3. The case of the plaintiff/respondent is as follows:-

There are three items of properties described as "A" schedule properties in the suit. All the three items of properties are comprised in S. No. 29/57 at Melmalayanur Village. The second item of "A" schedule property is again separately described as "B" schedule property. The dispute in the suit is in only in respect of "B" schedule property namely, the second item of "A" schedule property. The "B" schedule property is the land measuring North South 5 Gajam, East West 22 Gajam and old house situated thereon. It is the admitted case of the parties that all the three items in "A" schedule property including the "B" schedule property were owned by the father of one Mr. Kandasamy and Mr. Kadhirvel. They inherited the said property after the demise of their father. During the life time of Mr. Kandasamy and Mr. Kadhirvel they did not partition the said properties as well as the other joint family properties. Mr. Kandasamy died intestate leaving behind two sons and daughters. The plaintiff is one of the sons of Mr. Kandasamy. The other son is one Mr. Sundaramurthy. Mr. Kadhirvel also died intestate leaving behind his son who is the sole defendant in the suit. After the demise of Mr. Kandasamy and Mr. Kadhirvel, the plaintiff, Mr. Subramaniya Udayar (deceased) and Mr. Sundaramurthy were enjoying the suit properties as well as the other joint family properties together. Thereafter, there was an oral partition between the plaintiff, the defendant, Mr. Subramaniya Udayar and Mr. Sundaramurthy on 07.03.1959. Thus, from the date of oral partition, according to the plaintiff, he has got absolute title for the second item of "A" schedule property which is the "B" schedule property herein.

4. Subsequent to the partition, the defendant requested the plaintiff to allow him to reside in the house in the "B" schedule property. Accordingly, the defendant was allowed and he become permissive occupier. Now, the sole defendant disputes the title of the plaintiff and also declines to hand over vacant possession of "B" schedule property to the plaintiff. With these allegations, the respondent/ plaintiff filed the suit against Mr. Subramaniya Udayar, the sole defendant.

5. Mr. Subramaniya Udayar, the sole defendant in the suit, in his written statement has admitted that the entire "A" schedule property is the ancestral property, in which, Mr. Sundaramurthy, the plaintiff and the defendant himself have got undivided shares. It is a specific case that there was no partition effected between them. It is also his case that since, some dispute arose between them, the panchayatdars asked the defendant to occupy a portion of the "A" schedule properties and accordingly, he has be