JUDGMENT :

(Prayer: Appeal Suit is filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 21.08.2012 made in O.S. No.54 of 2008 on the file of the learned III Additional District Judge at Puducherry.)

The appeal suit on hand is preferred against the judgment and decree dated 21.08.2012 passed by the learned III Additional District Judge, Pondicherry in O.S.No.54 of 2008.

2. The third defendant Mr.N.Ravichandran is the appellant before this Court. The first respondent Mr.N.Kirubakaran is the plaintiff and the respondents 2 and 3 Mr.N.Kamalakaran and Smt.G.Umabai respectively are the defendants 1 and 2 before the Trial Court.

3. For the sake of convenience, the ranking of the parties in the appeal suit would be referred to as per their ranks in the Trial Court.

4. The suit was instituted by the first respondent/plaintiff for partition and for passing a preliminary decree of the entire A,B,C and D schedule mentioned properties into four equal shares and out of which allot one such share to the plaintiff and to pass a final decree in terms of the said preliminary decree to be so passed, for division of the entire suit A, B, C and D schedule mentioned properties by appointing an Advocate Commissioner, directing him to divide the said suit properties into four equal shares by metes and bounds and allot one such share to the plaintiff for his exclusive separate possession and enjoyment, directing the Advocate Commissioner to ascertain the mesne profits (rental income) from the ground floor of the 'A' schedule mentioned property; directing the third defendant to pay 1/4th share of the future mesne profits to the plaintiff from the date of plaint till he recovers his respective possession and share amounts through Court; granting permanent injunction restraining the third defendant, his men, agents or anyone claiming through him from encumbering, altering or transferring possession of the suit properties to anyone in any manner till the final disposal of the suit.

5. The first respondent/plaintiff set out a plaint before the Trial Court that he is the eldest brother of the defendants 1 to 3. In the year 1946, the plaintiff's father Mr.Narasimalu hailing from Arcot in Tirukoilur Taluk in Villupuram District, married one Premavathi of Thirupatheripuliyur, erstwhile South Arcot District (Cuddalore District). During the course of the lawful wedlock, three sons and one daughter were born to them i.e., the plaintiff and the defendants 1 to 3. The father of the plaintiff and the defendants, was working as a Postmaster and retired as such at Pondicherry.

6. The plaintiff has stated that during the year 1963, their father settled in Pondicherry and the plaintiff and the defendants were residing at Pondicherry and their marriages were performed at Pondicherry. The plaintiff and the defendants are now living separately with their respective families and the plaintiff's father sold his share of immovable properties, which he got from partition between himself and his brothers and his wife's property were also sold.

7. The funds were utilised for the purchase of the schedule mentioned properties. These properties were enjoyed by the plaintiff's father, the plaintiff and the defendants 1 and 3 except the second defendant, who is living at Chennai, but used to visit the plaintiff and the defendants 1 and 3 houses frequently and stay there for some days with the father. The father and mother of the plaintiff and the defendants were residing in the ground floor and the third defendant is residing in the first and second floor of No.44, Bajanai Madam Street, Muthialpet, Pondicherry ('A' schedule mentioned suit property). The first defendant is residing in the ground floor and the plaintiff is using the front portion open terrace sump area and passage including electricity service policy No.06-Z8-0644A and common water service facility at No.104-A, Bharathidasan Street, Muthialpet, Pondicherry ('B' schedule mentioned suit pro