The central legal point established in the judgment is that in the absence of proof of oral partition, co-sharers have a right in every inch of ancestral property, and exclusive possession cannot be claimed without sufficient evidence of partition.

JUDGMENT :

Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree, dated 10.11.2012 in A.S.No.11 of 2012 on the file of the Principal Sub-Court, Dindigul, reversing the judgment and decree, dated 30.10.2010 in O.S.No.173 of 2008, on the file of the Principal District Munsif Court, Dindigul.

1. Aggrieved over the reversal finding of the first appellate Court, the present Second Appeal is filed.

2. The parties are referred to as per their rank before the trial Court.

3. The brief facts, leading to the filing of this Second Appeal, are as follows:

The suit properties and other properties are originally owned by one Sathan Servai. He had two sons viz., Chinnaiyan and Ramasamy. The said Chinnaiyan had four sons. The first plaintiff is one of the sons of the said Chinnaiyan. The defendant is the son of Ramasamy, who is the one of the sons of the original owner Sathan Servai. On 18.01.1980, an oral partition was effected between the branches of the first plaintiff and the defendant. The suit property and other properties were allotted to the first plaintiff and his brothers. In the said partition, the defendant was also allotted some other properties and the defendant has enjoyed his share individually and sold some of the properties to the third parties. The defendant had also sold one of his property to the second plaintiff's husband A.S. Ramasamy. Thereafter, the first plaintiff and his brothers have entered into a partition deed, dated 07.07.2003. In pursuance of the partition, the plaintiffs are in possession and enjoyment of the suit property. The revenue records also stands in their name. Previously, there was a thatched shed in the suit property. The plaintiffs are raising a terraced house in the suit property. The defendant approached the plaintiffs to sell the suit property to them, however, the same was refused by the plaintiffs. Thereafter, in the third week of January 2008, when the first plaintiff attempted to start earth work for the proposed construction, the defendant made an attempt to prevent the first defendant and his men from doing earth work in the suit property. Hence, the suit.

4. Denying the oral partition deed, dated 18.01.1980, it is the contention of the defendant in the written statement that the partition deed, dated 07.07.2003 is not maintainable. It is the further contention that the defendant's branch is also entitled to have a half share in the suit property. Hence, prays for dismissal of the suit.

5. Based on the above pleadings, the trial Court has framed the following two issues:

(1) Whether the plaintiffs are entitled to get the relief of permanent injunction, as prayed for?

(2) To what other reliefs, the plaintiffs are entitled?

6. Before the trial Court, on the side of the plaintiffs, first plaintiff was examined as P.W.1 and Exs.A1 to A6 were marked. On the side of the defendant, he himself was examined as D.W.1 and Exs.B1 and B7 were marked.

7. Based on the evidence and materials, the trial Court had dismissed the suit. However, the first appellate Court had reversed the finding merely on the ground that under Ex.A4, the property was dealt with by the defendant in favour of the second plaintiff's husband. Therefore, the same probablise the oral partition and granted permanent injunction. As against the above finding, this Second Appeal is filed.

8. While admitting the Second Appeal, the following substantial question of law have been framed:

(i) Whether the first appellate Court is justified in decreeing the suit without any positive finding that the plaintiffs have proved oral partition on 18.01.1980 and by wrongly relying upon Ex.A4, contrary to the case of the plaintiffs and admission of P.W.1?

(ii) As the findings and conclusions of the first appellate Court regarding oral partition sustainable in law and based on legal evidence, especially when Ex.A.4, Ex.A.5 or any of the documents relied upon by the plaintiffs do not prove it?

9. The learned counse