JUDGMENT :

The plaintiff in O.S.No.710 of 2003, on the file of the learned I Additional Subordinate Judge, Erode, has preferred this Second Appeal.

2. Before the trial Court, the present appellant filed a suit seeking the relief of partition to divide the suit property into four equal shares by metes and bounds with reference to good and bad soil and allot one such equal share to the plaintiff. The learned 1st Additional Subordinate Judge, Erode, by judgment and decree dated 31.03.2008, allowed the suit and granted the decree, as prayed for.

3. Challenging the same, the respondents/defendants preferred an appeal in A.S.No.57 of 2008 on the file of the learned Additional District Judge (FTC-1), Erode and by judgment and decree dated 09.02.2009, the learned Additional District Judge (FTC-1), Erode, allowed the appeal and reversed the findings arrived at by the trial Court. Being dissatisfied with the said findings, the plaintiff in the above referred suit is before this Court.

4. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court.

5. The laconic averments made in the plaint, are as follows :

(i) The plaintiff is deaf and dumb and represented by his wife as a next friend of him. The 2nd defendant in the suit is the brother of the plaintiff. Both the plaintiff and the 2nd defendant are the sons of the 1st defendant. The plaintiff's father name is M. Abdul Rahman Sahib. They had ancestral properties at Lakkapuram Village, Erode Taluk. Out of the income realised from the ancestral properties and joint exertion of the plaintiff's family, the suit properties were purchased in the name of the 1st defendant by virtue of the sale deed dated 21.10.1960 with very old tiled house.

(ii) Subsequently, the plaintiff's family sold the ancestral properties as well as borrowed the amount jointly by mortgaging the properties with Erode Co-operative Housing Society and put up the terraced building in the suit properties. Subsequent to that, the plaintiff's grand father Mohideen Shabib died, leaving behind the plaintiff and the defendants as his only legal heirs to succeed his assets. As such the plaintiff and the defendants are entitled to common 1/3rd share in the suit properties. In the suit property, except the house portion, wherein the defendants are residing, other portions are leased out to third parties and the rental amounts realised from the tenants are utilized for discharging the mortgaged debt, which was availed from the Erode Cooperative Society.

(iii) After the grandfather's demise, the defendants taking advantage of the position of the plaintiff, given all sorts of troubles in enjoying the suit property in common. Hence, to avoid further complication with the defendants, the plaintiff is now residing in the plaint mentioned address. Since the activities of the defendants are inimical towards the plaintiff and further taking advantage of the plaintiff's said position as deaf and dumb, both defendants are completely acting against the interest of the plaintiff and now making hectic attempts to encumber the properties as per their whims and fancies, ignoring the rights of the plaintiff.

(iv) The 1st defendant is the housewife and not at all had any individual income even to purchase the property and put up the construction in the same. It appears that the defendants colluded and joined together and created a gift settlement deed dated 22.04.1999 in between them, only with a view to defraud the interest of the plaintiff. The alleged release deed dated 22.04.1999 created by the defendants, is not at all binding upon the plaintiff's right.

(v) Since the father of the plaintiff is the competent person, who knows every transaction, he was impleaded as a third defendant. Before the suit, the plaintiff demanded the defendants for partition in person as well as through the well wishers of the family by suggesting several modes for amicable partition. But all the efforts taken by th