JUDGMENT :

(Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 15.12.2004 in A. S. No. 40 of 2003 on the file of the Principal Subordinate Court, Gobichettipalayam, reversing the judgment against the order dated 26.08.2003 in O. S. No. 305 of 1999 on the file of the District Munsif Court, Gobichettipalayam.)

This second appeal is directed as against the judgment and decree dated 15.12.2004, passed in A. S. No. 40 of 2003 on the file of the Principal Subordinate Court, Gobichettipalayam, reversing the judgment against the order dated 26.08.2003 in O. S. No. 305 of 1999 on the file of the District Munsif Court, Gobichettipalayam.

2. For the sake of convenience, the parties are referred to, as per their ranking in the trial Court.

3. The case of the plaintiffs in brief is as follows :-

3.1. The suit is filed for declaration and permanent injunction. The second, third, fifth and sixth defendants are the sons of first and fourth defendants. The plaintiffs are brothers born to one late Karuppana Gounder. The suit schedule property derived by them from their ancestors, after the demise of their father as per partition deed dated 09.11.1998 and they partitioned the suit property. Accordingly in the suit schedule property, agricultural land measuring 25 cents belongs to second plaintiff and the remaining property of 3 cents along with Oil Engine is common for both the plaintiffs. When their father was alive, the first to fourth defendants partitioned by orally in the year 1970-1971 that through the suit schedule property comprised in R.S.F. No. 3/5 (old R.S.F. No. 21B) from the common well, they are taking water to irrigate their land with three feet breadth. Except this water line, they have no right or title over the remaining property even according to their partition. In fact, the defendants filed a suit in O.S. No. 308 of 1987 and it is pending on the file of this Court in S.A. No. 342 of 1992. Further, the defendants partitioned their property on 31.03.1997 itself i.e., even before the partition among the plaintiffs dated 09.11.1998. As per the plaint plan, adjacent to the common water line, an extent of 6 cents land is situated. While pending suit in O.S. No. 308 of 1987, in the said land, the plaintiffs had set separate Oil Engine to draw water from the well. In the said property, measuring 6 cents, the defendants have no title or right over the same. When the plaintiffs are in enjoyment of the said property, the defendants are also claiming right over the said property and prevented the plaintiffs to enjoy the said land.

3.2. In fact, in the said property partition was effected between the defendants without the knowledge of the plaintiffs on 31.03.1997 and so, it cannot bind the plaintiffs at any point of time. Further it is stated in the revenue records that, they also mutated the name including the plaintiffs name in respect of the said property as joint patta. In this regard, an appeal is also pending. Therefore, the plaintiffs sought for declaration and permanent injunction in respect of the suit schedule property.

4. Resisting the same, the defendants filed a written statement and the case of the defendants in brief is that, in R.S.F. No. 21B measuring 80 cents, 1/3 share belongs to the plaintiffs and 2/3 share belongs to one Murugana Gounder. The first and fourth defendants, by the sale deed dated 27.03.1970 purchased the property comprised in R.S.F. No. 21B to the total extent of 80 cents, i.e., 2/3 share from the said Murugana Gounder. In the said deed, the vendor clearly mentioned, 2/3 share in R.S.F. No. 21B. The father of the plaintiffs also mortgaged the property, i.e., 1/3 share that belongs to him, measuring 26.2/3 cents to one Ramana Gounder. Therefore, the plaintiffs are entitled to land measuring 26.2/3 cents in R.S.F No.21B only, as per the mortgaged deed executed in favour of one Ramana Gounder. Thereafter, R.S.F. No. 21B was sub-divided as 3/4, 3/