R. Subramanian, J.

The second defendant in O.S. No. 111 of 1995 is the appellant herein. The said suit was filed by the first respondent/plaintiff claiming that the suit properties which are 4 in number, were purchased from and out of the contributions of three sons of Munusamy Chettiar; namely B.M. Chenniya Chetty (first defendant), M.Chinnappan (second defendant), and M.Ranganathan, the plaintiff.

2. According to the plaintiff though the family was joint, it has no ancestral property. The first defendant and the plaintiff are doing cloth business, and the second defendant was employed in the Veterinary Hospital. Suit items 1 & 3 were purchased in the names of all the 3 brothers on 25.10.1968, 26.08.1970 and 07.09.1972 respectively. Item 4 was purchased on 26.11.1974 in the name of the first defendant, even though the three brothers are contributed for purchased Item 4 also. According to the plaintiff, none of the properties were divided while the plaintiff was residing in item 2, item 1 was in enjoyment of the first and second defendants. On the above pleadings, the plaintiff sought for partition and separate possession of his ?rd share in the suit properties.

3. The first defendant filed a written statement wherein, he would admit the case of the plaintiff with reference to items 1 to 3 and in so far as item 4 is concerned he would claim that he acquired the said property by purchase from out of his own money and the sale deed was taken in his name alone. Therefore neither the plaintiff nor the second defendant can claim any share in the said item.

4. The second defendant filed a separate written statement contending that all the four properties are common properties. He would further contend that there was a partition in the year 1976, and in the said partition item 1 was allotted to him to be enjoyed by him as his absolute property. He would further claim that the partition is evidenced by a Muchalika dated 24.10.1976. He would also claim that he has been in a possession of item 1 from the date of the said partition namely on 24.10.1976, and hence he has perfected title by adverse possession. A rejoinder was filed by the plaintiff denying the partition dated 24.10.1976, and an additional written statement was also filed by the second defendant reiterating the partition. On the above pleadings, the learned Principal District Judge, Dharmapuri framed the following issues.

1. Whether the plaintiff is entitled to partition?

2. Whether the plaintiff is entitled to get perpetual injunction as claimed by him?

3. Whether the 4th item is the separate property of the 1st defendant? (recast as per the order in I.A.No.337/2000 dated 27.07.2000).

4. Whether the item No.1 is the separate property of the 2nd defendant?

5. Whether the father of the plaintiff and the defendants 1 and 2 is a necessary party to the suit?

6. What is the relief for which the plaintiff is entitled? (Additional issues framed as per Order in I.A.No.337/2000 dated 02.07.2000).

7. Whether the partition in 1976 pleaded by the 2nd defendant is true?

5. The plaintiff examined himself as PW-1 and Exs.A-1 to A-7 were marked. The first defendant was examined as D.W-1, and one Theerthagiri who claims himself to be the witness in Ex.A-4 sale deed was examined as D.W-2. The second defendant was examined as D.W-3, Exs.B-1 to B-12 were marked on the side of the defendants. The Commissioner's report and plan marked as Exs.C-1 and C-2. The final report and sketch were marked as Ex.C-3 and C-4.

6. Upon a consideration of the oral and documentary evidence, the learned Principal District Judge, Dharmapuri rejected the defence of the first defendant relating to item 4 of the suit properties. He had in fact come to the conclusion that item 4 of the suit properties was also purchased by the brothers out of their joint contribution, and therefore, the first defendant cannot claim any independent/absolute right over the suit item 4. The learned Principal District Judge also rejected the