JUDGMENT :

Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.18 of 2008 on the file of Principal District Court, Chengalpattu dated 27.07.2010 confirming the judgment and decree passed in O.S.No.273 of 2002 on the file of the Principal Subordinate Court, Chengalpattu, dated 24.10.2007.

1. The defendants 1, 7 and 8 are the appellants in this Second Appeal.

2. The 1st and 2nd respondents/plaintiff filed a suit seeking for the relief of recovery of possession with respect to the “A” schedule property from the 1st defendant and for the relief of partition with respect to “B” schedule property and for allotment of 1/4th share to each of the plaintiff. The case of the plaintiff is that one K. Shanmugam (1st defendant) was the absolute owner of the suit properties. Rajammal is his first wife and Kripasankari is the second wife (4th defendant). Three sons were born out of the first wife and they are, the deceased plaintiff Jayaraman, the 2nd defendant and the 3rd defendant respectively. The 1st defendant had four children through his second wife and they are, defendants 5 to 8. Jayaraman died and his wife and daughter have been substituted in his place as the plaintiff. The children of the 2nd defendant who also died during the pendency of the proceedings have been impleaded as D9 to D11.

3. It is stated in the plaint that the 1st defendant executed a registered Settlement Deed dated 19.9.1966, marked as Ex.B-1 in favour of the mother of the plaintiff and in favour of the original plaintiff Jayaraman and the 2nd defendant. As per the Settlement Deed, the mother was given the right to enjoy the “A” schedule property without any power of alienation and after her lifetime, it will vest absolutely in favour of the original plaintiff Jayaraman and the 2nd defendant.

4. The further case of the plaintiff is that his mother died in the year 1975 and the “A” schedule property was in possession and enjoyment of the plaintiff and the 2nd defendant and it was in the joint possession of the 3rd defendant.

5. While so, the first defendant executed a revocation deed dated 19.09.1997, marked as Ex.B-2 and cancelled the Settlement Deed dated 19.09.1966. Thereafter, the 1st defendant was continuing to occupy the “A” schedule property and was refusing to surrender vacant possession. Hence, the plaintiff sought for the relief of recovery of possession with respect to the “A” schedule property.

6. The plaintiff had also sought for the relief of partition with respect to the “B” schedule property and there is no requirement to touch upon the facts pertaining to this property since the present Second Appeal is confined only with the dispute with regard to the “A” schedule property.

7. The 1st defendant filed a written statement. He accepts the execution of the registered Settlement Deed in favour of his first wife Rajammal. However, the plea taken in the written statement is to the effect that the Settlement Deed was never acted upon and it was a nominal document. The 1st defendant also took the plea that the possession of the property was neither handed over to Rajammal nor to the 2nd and 3rd defendants and it is the 1st defendant who was cultivating the property. Therefore, the 1st defendant had sought for the dismissal of the suit. The other defendants have also filed written statements. However, those written statements pertains to the “B” schedule properties and hence, the averments made in those written statements may not be relevant for the purpose of this Second Appeal.

8. The Trial Court after considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, found that the plaintiff is entitled for the relief of possession with respect to the “A” schedule property and insofar as the relief sought for in the “B” schedule property, the suit was dismissed. Aggrieved over the Judgment and Decree of the Trial Court, the 1st defendant filed an A