JUDGMENT :

PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree in A.S.No.172 of 2006, dated 31.01.2007 on the file of the Principal District Judge, Trichirappalli, reversing the decree and judgment in O.S.No.597 of 2000, dated 05.10.2005 on the file of the second Additional Sub Judge, Tiruchirappalli.

The contesting defendant in O.S.No.597 of 2000 on the file of the second Additional Sub Judge, Tiuchirappalli, is the appellant in this second appeal.

2. The original appellant had passed away and his legal heirs have come on record. The first respondent herein Thiru.Irulan filed the said suit seeking partition of 1/2 share in the suit properties. The original appellant Ayinan who was shown as the first defendant, was the younger brother of the plaintiff.

3.The case of the first defendant was that the partition had already taken place some 40 years prior to the institution of the suit and that therefore, the suit was not maintainable. The first defendant specifically contended that out of the labour put in by him, income was generated from the lands and with those funds, the first defendant had put up a house and also obtained service connection for the suit well in his name. The revenue records have also been accordingly mutated and he also pointed out that some of the properties purchased by him out of his own income and funds have also been maliciously included in the suit schedule. Based on the divergent pleadings, the Court below framed the following issues:-

“1.Whether the suit properties are the joint family properties of the plaintiff and the first defendant?

2. Whether an oral partition took place in the family and the first defendant got his share is true?

3. Whether the plaintiff is entitled to half share in the suit property ?

4. Whether the plaintiff is entitled for mandatory injunction against the first defendant for disconnection of the service connection to the electric motor fixed in the common well?

5. To what relief, the plaintiff is entitled to ?”

4. The plaintiff examined himself as P.W.1 and one Balakrishnan as P.W.2. Ex.A1 to Ex.A5 were marked. The defendant examined himself as D.W.1. The 6th defendant Santhanammal who was their sister was examined as D.W.2. A villager who is a relative and who had put up the houses was examined as D.W.3. After considering the evidence on record, the learned trial Judge, by judgment and decree dated 05.10.2005, dismissed the suit. Aggrieved by the same, the plaintiff filed A.S.No.172 of 2006 before the Principal District Judge, Tiruchirappalli. By the impugned judgment and decree dated 31.01.2007, the judgment and decree passed by the trial Court was set aside and the plaintiff was held entitled to partition of his 1/2 share in the suit properties by metes and bounds. A further direction was given to disconnect the electricity service connection obtained by the first defendant in his name. Since it was also found that the first defendant was enjoying in excess of 1/2 share in the suit properties, he was ordered to render accounts in a separate proceedings under Order 20 Rule 12 of C.P.C. Aggrieved by the judgment and decree passed by the first Appellate Court, the first defendant has filed this second appeal. The second appeal was admitted on the following substantial questions of law:-

“(i) Whether the lower appellate Court has committed an error in law in decreeing the suit contrary to the admissions made by the plaintiff as P.W.1?

(II) Whether the lower Appellate Court is right in holding that the plaintiff shall be entitled to a decree for partition in respect of all the suit properties, despite the fact that the plaintiff had admitted that a partition had taken place long prior to the filing of the suit and that he did not seek the relief of partition in respect of all other properties excepting one? And

(III) Whether the lower Appellate Court has committed an error in reversing the well considered finding of the trial Court