JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree dated 31.08.1998 in A.S.No.54 of 1994 on the file of the Principal Sub Court, Tenkasi preferred against the judgment and decree dated 21.02.1994 in O.S.No.525 of 1988 on the file of the District Munsif Court, Tenkasi.

1. The defendants are the appellants.

2. The plaintiffs filed O.S.No.525 of 1988 before the District Munsif Court, Tenkasi for declaration of title and permanent injunction. The suit was decreed by the trial Court. The defendants filed A.S.No.54 of 1994 before the Principal Subordinate Court, Tenkasi challenging the decree passed by the trial Court. The plaintiffs filed a cross appeal challenging a finding of the trial Court. The First Appellate Court dismissed the appeal filed by the defendants and allowed the cross appeal filed by the plaintiffs. As against the same, the defendants have filed the above second appeal.

3. The plaintiffs had contended that the plaint schedule property belonged to the family of brothers Theertharappa Mudaliar and Nagappa Mudaliar. According to the plaintiffs, both the brothers have entered into a partition on 25.03.1916. In the said partition deed, the first schedule was allotted to the share of Theertharappa Mudaliar, the second schedule property was allotted to the share of Nagappa Mudaliar and the third schedule property was retained as a common property for both the brothers. The plaintiffs had contended that the present first schedule property is part of the suit second schedule property. According to the plaintiffs, the suit schedule second item is having an extent of 2.68 acres, in which, the south-west 22 cents is the first schedule property. The plaintiffs had further contended that the entire second schedule property namely 2.68 acres was allotted to the share of Nagappa Mudaliar. Since the first schedule property forms part of the second schedule, the plaintiffs claimed declaration of title over the first schedule property and for permanent injunction for the said property. The plaintiffs had further contended that the first schedule property having an extent of 22 cents is a Kalam and it was exclusively allotted to the share of Nagappa Mudaliar and his brother Theertharappa Mudaliar was given only a license/permission to use the said Kalam. The plaintiffs had further contended that there was a preemptive clause in the partition deed that the brothers should not alienate the properties to any third party apart from brothers. The plaintiffs are the sons of the Nagappan. According to the plaintiffs, the son of Theertharappa Mudaliar namely Ramasamy made an attempt to alienate the property to a third party. Hence, he issued a legal notice on 03.05.1981 directing him to stop any alienation. For the said legal notice, the said Ramasamy had sent a reply on 13.05.1981 stating that there is no intention on his part to alienate the suit schedule property. However, in breach of the preemptive clause, the said Ramasamy alienated the first schedule property in favour of the first defendant on 07.06.1982. Even though, the said sale deed does not refer to the first schedule property in the schedule of property, the defendants are obstructing the possession and enjoyment of the plaintiffs. Hence, the present suit for declaration of title and permanent injunction in the first schedule property.

4. The defendants filed a written statement contending that the suit first schedule was not exclusively allotted to the share of Nagappa Mudaliar, but it was retained as a common property to be used as a Kalam by both the brothers. According to the defendants, the present first schedule property is shown as third schedule in the partition deed dated 25.03.1916. As per recital in the said partition deed, the third schedule property is retained as a common property for both the brothers and hence, the contentions of the plaintiffs that it was exclusively allotted to Nagappa Mudaliar is contrary to the r