G. Jayachandran, J.

The plaintiff and the first defendant are sons of Venga Gounder. According to the plaintiff, the suit property was allotted to his share in the oral partition between the family members 40 years back. The plaintiff is, in open, uninterrupted possession and enjoyment of the property paying necessary kist. While so, when he leased out the suit property to one Anbu Gounder, the first defendant in collusion with his neighbour the second defendant disturbing the peaceful possession and preventing his leasee from putting up a thatched superstructure. Hence, suit for declaration and injunction.

2. Per contra, the defendant contended that no partition has effected in respect of the properties of Venga gounder. Till date, the properties are jointly enjoyed by the plaintiff and the first defendant. The properties are ancestral properties in which, the first defendant is a co-sharer. The plaintiff never been in exclusive possession or enjoyment. Venga Gounder died intestate leaving behind two sons, who are the plaintiff and the first defendant. All the properties are ancestral in nature and inheritance shall be in accordance with Act 30/1956. The suit property was purchased by Venga Gounder on 15.05.1957 from the surplus income derived out of the ancestral nucleus and blended into the hotchpot of the ancestral properties. As manager of the joint family, the plaintiff is paying kist in his name in his capacity as Kartha of the family. The suit is liable to be dismissed, since there is no cause of action to file the suit and the suit as framed is defective and relief claimed is misconceived.

3. The trial Court framed the following issues:

"(1) whether the suit property is the joint family property of the plaintiff and the first defendant?

(2) whether the plaintiff is entitled to the relief ask for?

(3) to what relief?"

4. After analysing the evidence put-forth by the respective parties, the trial Court held in favour of the plaintiff and allowed the suit as prayed for.

5. On appeal, the lower appellate Court reversed the judgment of the trial Court and dismissed the suit holding that the burden of proving the alleged oral partition is not properly discharged by the plaintiff. The lower appellate Court, considering the fact that patta for the property jointly stands in the name of plaintiff and the first defendant, except Ex.A2 kist receipt, no evidence to show the continuous and exclusive possession with the plaintiff. Further, the lower appellate Court, while discussing Ex.A8 a sale deed executed by the first defendant in favour of the plaintiff, has observed that the sale deed does not mention that the said property was allotted to him under oral partition. Therefore, merely because the first defendant sold a property to the plaintiff, it does not mean that oral partition took place between the plaintiff and the first defendant.

6. At the time of admitting the second appeal, this Court has formulated the following Substantial Question of Law for consideration:

"Whether on the pleadings and the material brought on record by the plaintiff the first appellate Court was right in holding that there was no oral partition as pleaded by the plaintiff and therefore, the suit filed by plaintiff was liable to be dismissed more so when such a finding was arrived at by misconstruing the recitals in Ex.A8?"

7. Head the learned counsel for the appellant and the learned counsel appearing for the respondent and perused the materials available on record.

8. On perusal of evidence both oral and document, it is crystal clear that the lower appellate Court has miserably failed to appreciate the evidence in a holistic manner. It has gone astray by looking into the materials placed before it in bits and pieces. Non framing of specific issue regarding the alleged oral partition has over weighed, the mind of the lower appellate Court leading to the perverse finding.

9. While the first defendant has admit the fact that Ex.A8 was executed by him.