JUDGMENT :

Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.1 of 2008 dated 07/11/2012 on the file of the Court of District and Sessions Judge, Thiruvarur, in reversing Judgment and Decree passed in O.S.No.124 of 2006 dated 12.06.2008 on the file of the Court of Subordinate Judge, Mannargudi.

1. Defendants 2 to 6 are the appellants in this Second Appeal.

2. The 1st respondent/plaintiff filed a suit seeking for the relief of partition and for allotment of 7/24th share in the suit properties.

3. The case of the plaintiff is that the suit properties originally belonged to one Abdul Majeed Rowthar. He is the father of the plaintiff and the 6th defendant, husband of the 1st defendant, father-in-law of the 2nd defendant and the grandfather of defendants 3 to 5. The further case of the plaintiff is that the said Abdul Majeed Rowthar died intestate leaving behind the suit properties. The defendants were taking steps to dispose of the suit properties without giving a share to the plaintiff. Hence, the plaintiff filed the suit for partition and claimed for his share in the property.

4. The trial Court on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, dismissed the suit. Aggrieved by the same, the plaintiff filed an appeal before the District Court. The District Court on re-appreciation of the facts and circumstances of the case and the oral and documentary evidence, found that the plaintiff is entitled for 7/24th share to an extent of 550 sq.ft., and accordingly, a preliminary decree was passed. Aggrieved by the same, defendants 2 to 6 have filed the present Second Appeal.

5. This Court framed the following substantial questions of law:

(a) Whether the Lower Appellate Court was right in passing a preliminary decree in favour of the plaintiff by granting 7/24th share for an extent of 550 Sq.ft even without the plaintiff seeking for any amendment of the plaint?

(b) Whether the Lower Appellate Court failed to appreciate the fact that the relief granted in favour of the plaintiff does not have any connection with the cause of action that was alleged in the plaint?

(c) Whether the Lower Appellate Court has given cogent reasons as mandated Order XLI Rule 31 of CPC before reversing the well considered judgment of the Trial Court?

(d) Whether the findings of the Lower Appellate Court can be termed as perverse due to improper appreciation of oral and documentary evidence available on record?

6. Heard Mr.A.Muthukumar, learned counsel for the appellants and Mr.E.P.Senniyangigi, learned counsel for the 6th respondent.

7. A careful reading of the judgments passed by both the Courts below reveals the fact that the total extent of the suit property is 2199 sq.ft., and out of this total extent, 1100 sq.ft., alone belonged to the deceased Abdul Majeed Rowthar. The said Abdul Majeed Rowthar executed a Settlement Deed [Ex.B-2] in favour of the 1st defendant and thereby, settled the entire property in favour of his wife. The 1st defendant in turn executed a Settlement Deed [Ex.B-3] in favour of the 6th defendant and her predeceased son Mohammed Yunus. A careful reading of Ex.B-3 shows that what was settled by the 1st defendant in favour of her sons was only half of the total extent of 1100 sq.ft., i.e., only 550 sq.ft., was settled by the 1st defendant.

8. Defendants 2 to 5 are the legal heirs of the predeceased son Mohammed Yunus. The 6th defendant filed a written statement by taking a defense that the entire property was settled in favour of the 1st defendant and in turn the 1st defendant had settled the property in favorur of the 6th defendant and the pre-deceased son Mohammed Yunus. A further plea was taken in the written statement to the effect that the plaintiff had been given in adoption to their paternal uncle and that he no longer belongs to this family and hence, he is not entitled for any share in the suit properties.

9. The