JUDGMENT :

R.VIJAYAKUMAR, J.

1. The plaintiffs in a suit for partition have preferred the present first appeal challenging the dismissal of their suit.

(A).Factual Background:

2.The plaintiffs have contended that one Karuppannan had four sons by name Sanjeevi, Kannaiyan (D1), Balakrishnan and Nalliyannan and they remained as undivided Hindu joint family. In an oral partition of their family business on 01.04.1988, the first defendant Kannaiyan obtained an amount of Rs.2,25,000/- towards his share. Utilising the said amount, he had purchased 'A' and 'B' schedule properties. The first defendant had got married to one Suseela and they are blessed with three children namely Kalaiselvi, Vijayakumar and Venkatesh. Therefore, the said Kannaiyan constitutes a Hindu undivided family along with his three children.

3.In the plaint it is further contended that Kannaiyan had alienated a portion of the property in favour of defendants 2 and 3 claiming it to be his separate property. Hence, the suit for partition by the children of Kannaiyan seeking 1/4^th share in the suit schedule property. The first defendant had remained exparte.

4.The second defendant had filed a written statement contending that he had purchased a portion of the suit schedule property from the first defendant on 25.07.2003 under a registered sale deed in Doc.No.827/2003. He had further contended that the first defendant had instigated his children to file the suit for partition. The suit schedule properties are the absolute properties of the first defendant. The first defendant made several attempts to trespass into the suit schedule properties which resulted in filing of three F.I.Rs. The second defendant had further contended that he had already filed O.S.No.118 of 2011 seeking permanent injunction. Only as a counterblast, the present suit has been filed. Hence, he prayed for dismissal of the suit.

5.The third defendant in the suit namely Anandhakrishnan had filed a written statement contending that he had purchased the portion of the suit schedule property of the first defendant under a registered sale deed dated 25.07.2012 and when the first defendant made an attempt to trespass into the suit schedule properties, a police complaint had been given on 19.12.2006 and on 01.06.2007. Hence, he prayed for dismissal of the suit.

6.The second defendant in O.S.No.32 of 2010 had preferred O.S.No.118 of 2011 before the same Court seeking permanent injunction. In the said suit, he had contended that he had purchased the property from the first defendant on 25.07.2012 and through his power agent, he has created a layout and sold the property to the defendants 4 to 38. According to him, the suit schedule properties are the absolute properties of the first defendant namely Kannaiyan. Pursuant to the sale deed in his favour, he had taken possession of the property and defendants 4 to 38 have put up construction in the suit schedule properties.

7.It was further contended that since the plaintiffs are not in possession of the suit schedule properties, the Court fee paid by them on the ground that they are in joint possession is not correct. It was further contended that the properties which have been sold by the first defendant have not been included in the suit schedule properties and therefore, the suit is bad for partial partition.

8.The trial Court tagged both the suits together and conducted a joint trial.

9.The evidence was recorded in O.S.No.32 of 2010. The second plaintiff was examined as PW1 and one Kuppusamy was examined as DW1. Exs.A1 to A7 were marked on the side of the plaintiffs and Exs.B1 to B37 were marked on the side of the defendants. The trial Court dismissed O.S.No. 32 of 2010 and decreed O.S.No.118 of 2011.

10.Challenging the decree passed by the trial Court in O.S.No.32 of 2010 (partition suit), the present appeal has been preferred by the plaintiffs in the said suit.

(B).Submissions of both counsels:

11.When the appeal was taken up for hearing, the learned counsel for the re