Dr. G. Jayachandran, J.

1. The appellant herein who is the plaintiff in the suit for declaration and injunction though succeeded before the trial Court lost his case before the First Appellate Court in the first appeal and hence, preferred the second appeal, questioning the legality of the judgment passed by the First Appellate Court on the following substantial questions of law:-

"1. Whether the lower appellate court is justified in rejecting the oral partition pleaded by plaintiff overlooking the various admissions made by D.W.1 admitting the partition among the family members?

2. Whether the lower appellate Court is right in not adverting to and discussing the evidence of P.W.2, an independent witness overlooking that it is a final Court of fact?"

2. The case of the plaintiff is that, his father Mr. Chellappa Gounder during his life time divided his properties among his three sons through oral partition some 17 years before the date of filing of the suit. Based on the said oral partition, the brothers have accepted their respective allotted shares and ever since enjoying their respective properties exclusively and absolutely. The suit land is the portion allotted to the plaintiff. He has improved the land by putting up separate well and installing pump set. He had laid pipeline to take water to his land from the well. While the first defendant being one of his brother was allotted land and the house, wanted to share the pipeline laid by the plaintiff jointly with others to bring Bhavani river water to irrigate his land. When the plaintiff refused to share the pipeline with the first defendant, the first defendant caused notice demanding partition of the family properties, as if, it has not been partitioned. The plaintiff tried to settle the dispute amicably through the panchayatdars but, the first defendant did not co-operate. Taking advantage of the non registration of the partition, the defendants coercing the plaintiff to concede their demand and further, interfered with the exclusive possession and enjoyment of the of the plaintiff over the pump set and crops raised by him, in the suit land. Hence, the suit for declaration of the plaintiff title over the suit property and perpetual injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property was filed by the plaintiff.

3. The first defendant filed written statement denying the allegations made by the plaintiff regarding the oral partition. However, admits the fact that the family properties were divided for convenient sake into three shares, about 11 years ago and the brothers have been enjoying one share each, as per the division of convenience only. There is no permanent partition between the family members as claimed by the plaintiff. The suit property was allotted to the plaintiff for enjoying it and not permanently based on the oral partition, as averred. In fact, Mr. Chellappa Gounder, the father of the plaintiff and the defendants sold one acre of land in S. No. 105 Akarai Thathapalli Village on 12.06.1978. If the allegation of oral partition took place 17 years ago, in respect of the properties owned by Mr. Chellappa Gounder, then Mr. Chellappa Gounder could not have sold one acre of the family property in the year 1978. Therefore, the suit property being the family property held jointly by the family members, neither declaration of title nor injunction could be granted against the co-owner. The first defendant also denied the allegations that in respect of improvement of the land made by the plaintiff and laying pipeline for drawing water to the suit property. It is also stated in the written statement that the first defendant has resorted to a civil suit for permanent injunction against the plaintiff regarding usage of the pipeline for drawing water from Bhavani river in O.S. No. 206/1993 and the same is pending.

4. The written statement of the first defendant has been adopted by the second and thir