JUDGMENT :

PRAYER: Appeal Suit filed under Section 96 of the Code of Civil Procedure read with Order 41 Rule 1 of CPC against the Judgment and Decree of the learned I Additional District and Sessions Judge, Tiruppur made in O.S.No.331 of 2013 dated 26.10.2017.

The unsuccessful plaintiff in a suit for partition is the appellant before this Court. The facts in brief necessary for disposing of the above appeal is herein below narrated. Parties are referred to in the same ranking as before the Trial Court.

2. The plaintiff had filed the suit O.S.No.331 of 2013 on the file of the I Additional District and Sessions Judge, Tiruppur seeking a partition and separate possession of his 1/3 rd share in the suit schedule property. It is the case of the plaintiff that the 2nd defendant and he are siblings, and their father late is Perumalsamy. The 1st defendant is the younger brother of the Perumalsamy. The plaintiff would contend that this suit property have been allotted to the share of their father under a partition deed dated 14.03.1972, entered between his family members and the suit schedule has been described as the D-Schedule thereunder. On and from the date of the partition the plaintiff has been exclusively in possession and enjoyment of the same.

3. It is a further case that the 2nd defendant was born on 18.04.1980 and he was born on 14.11.1984 and by reason of the Hindu Successions Act he and the 2nd defendant had therefore become coparceners in respect of the suit property alongwith their father each being entitled to a 1/3 rd share. The plaintiff's father passed away on 09.02.2009 and on the demise of their father they had enquired with their uncle, the 1st defendant as to what were the properties that belonged to their father. However, the 1st defendant had given evasive replies constraining the plaintiff to apply for an encumbrance certificate in respect of the suit property. It is only then that the plaintiff came to know that his father has alienated the suit property in favour of the 1st defendant under a registered sale deed dated 25.03.1985.

4. The plaintiff would contend that his father had no authority to sell the entire extent of the suit property to the 1st defendant particularly when the plaintiff and the 1st defendant has a share each in the said property. The plaintiff and the 2nd defendant therefore called upon the 1st defendant by a legal notice dated 22.08.2013 to partition and allot their 2/3 rd share in the suit schedule property. Though the 1st defendant had received the notice he did not issue any reply. Therefore the plaintiff is filing the above suit. Since the 2nd defendant has not joined him filing the suit, she has been impleaded as the 2nd defendant.

5. The 1st defendant had filed a written statement alongwith a counter claim in which he has stated that the sale of the property in his favour was well known to the plaintiff and the 2nd defendant. He would further contend that he has been in possession and enjoyment of the suit property right from the date of its purchase. On the date of sale in his favour, the plaintiff was 4 months old and the 2nd defendant was 5 years old. The defendant would submit that he has been carrying on agricultural operations in the said land from the date of its purchase. Since the land was a rain fed land the defendant had to work extensively to make the lands arable. He had, with the help of the well water from his other lands converted the suit lands into a Mango thope just 5 years ago and has led a pipe line to a length of 2500 feet and has been enjoying the property as his absolute property.

6. The defendant denied the contention of the plaintiff that they had been in possession along with him. The defendant would further submit that his brother, the father of the plaintiff had sold the suit property to him for his family necessities and for starting a business in manufacturing wet Grinders. The father of the plaintiff did not want to sell the property to third parties and t