JUDGMENT :

Prayer: This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 22.12.2009 made in A.S.No.39 of 2007 on the file of the learned Subordinate Judge, Chidambaram, reversing the judgment and decree dated 28.12.2006 made in O.S.No.437 of 2000 on the file of the District Munsif cum Judicial Magistrate, Kattumannarkoil.

1. The Second Appeal is focused as against the judgment and decree dated 22.12.2009 passed in A.S.No.39 of 2007 by the learned Subordinate Judge, Chidambaram, in reversing the judgment and decree dated 28.12.2006, made in O.S.No.437 of 2000 by the learned District Munsif cum Judicial Magistrate, Kattumannarkoil. The suit is for the relief of partition and separate possession.

2. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court.

3. The laconic averments made in the plaint, are as follows:

(i) The plaintiff and defendants 1 & 2 are brothers, born to one Govindasamy Padayachi, through his wife Thilaiammal. The said Govindasamy Padayachi is the kartha of the family. In earlier, the said Govindasamy Padayachi purchased the suit ‘B’ schedule property and enjoyed the same. After the death of said Govindasamy Padayachi and his wife Thilaiammal, both the plaintiff and defendants 1 & 2 are entitled to 1/3 share in suit ‘B’ schedule property.

(ii) Item Nos.1 and 2 of the ‘B’ schedule property has been purchased by the said Govindasamy Padayachi through the sale deeds dated 05.05.1948 and 23.09.1948 respectively. Both the properties are situated in Mazhavarayannallur village. The total extent of the said property is 1 acre and 31 cents. From the income realised from the suit property, the said Govindasamy Padayachi purchased Item Nos.3 to 5 of the ‘B’ schedule property. The sale deed pertains to the said purchase is in the custody of the 1st defendant.

(iii) From the income realised from Item Nos.1 to 5 of the ‘B’ schedule property, the said Govindasamy Padayachi purchased the 6th Item of the suit schedule property, in the name of the 2nd defendant. Now the plaintiff came to know that the 2nd defendant sold the 6th Item to the 4th defendant. In the sale deed executed by the 2nd defendant either of the plaintiff or the 1st defendant had not signed as a party to the document.

(iv) Since the said sale is against the wishes of the plaintiff, on 01.07.1999, the plaintiff issued a legal notice to the defendants 1 & 2, wherein he demanded partition in the suit schedule property. Now, the 2nd defendant attempted to alienate the suit schedule property in favour of third parties. Hence, the suit.

4. The averments found in the written statement filed by the 1st defendant, are as follows:

(i) The genealogy tree submitted by the plaintiff is found correct. After purchasing the 1st and 2nd item of the suit schedule property, the father of the plaintiff, Govindasamy Padayachi divided the same into two parts i.e., North and South and cultivated the same. After the demise of the Govindasamy Padayachi, in the oral partition held in the year of 1986, at Kumarakudi, the properties mentioned in Item Nos. 1 and 2, measuring a total extent of 1.31 acres was divided into two and later, the northern portion was allotted to the 2nd defendant and the southern portion was allotted to the plaintiff.

(ii) In the said oral partition, Item Nos.3 to 5 of the suit schedule property was allotted to the 1st defendant and afterwards the plaintiff and the defendants 1 and 2 are enjoying their respective shares. The said partition was effected in the presence of Ramachandra Konar, Ramamoorthy Pillai, Potturajan, Ramasamy and Kurinjipadi Poorasamy.

(iii) After the partition, since the 1st defendant was residing in Virudachalam, he leased out the property, which was allotted to him, to the plaintiff and received the lease amount. However, for the past three years, the plaintiff has not paid any lease amount. Item No.6 of the su