JUDGMENT :

P.B.BALAJI, J.

The unsuccessful plaintiff in O.S.No.10 of 2008, who was also unsuccessful in his challenge by way of First Appeal in A.S.No.9 of 2015, is the appellant. Pending the appeal, the sole appellant died and his legal representatives have been brought on records as appellants. In fact, respondents 3 to 5 who are also the legal heirs of the deceased sole appellant / plaintiff and were not in good terms with appellants 2 to 4 have been arrayed as respondents 2 to 5. However, in the present Second Appeal, the case of the appellants is supported by the respondents 3 to 5 as well.

2.I have heard Mr.C.Susikumar, learned Counsel for the appellants and Mr.M.Thirunavukkarasu, learned Counsel for the respondents 3 to 5 who support the case of the appellants and Mr.S.Prabhu, learned Counsel for the first respondent and Mr.A.R.Kannappan, learned Counsel for the second respondent.

3.The brief facts that are necessary for decision in this Second Appeal are as follows:

3.1.The plaintiff and the first defendant are brothers being sons of one Ramalingam, who was admittedly, the original owner of the suit property. After the demise of said Ramalingam, his wife and children including the plaintiff and his three daughters Saraswathi, Valli and Rajalakshmi were in joint possession and enjoyment of the suit property. According to the plaintiff, in and by a family partition effected and reduced to writing on 18.11.1976, the suit property comprised in S.No.274/4, was allotted to the share of the plaintiff. The said unregistered partition deed has been exhibited as Ex.A.1, before the Trial Court. It is the specific case of the plaintiff that ever since, the plaintiff has been in separate and exclusive possession and enjoyment of the suit properties. The grievance of the plaintiff before the Trial Court and in the plaint is that despite the partition dated 18.11.1976, the first defendant has published public notices, as if his wife had a right in the suit property and thereafter, in December 2007, the first defendant also attempted to interfere with the plaintiff's peaceful possession and enjoyment of the suit properties. The second defendant is the purchaser of the suit schedule property in and by sale deed dated 05.10.2005, pursuant to a settlement deed dated 19.09.2002.

3.2.The case of the first defendant in the written statement was that there was no such partition deed executed on 18.11.1976 and further, the plaintiff was not in possession and enjoyment of the suit properties pursuant to the alleged partition deed dated 18.11.1976. It is also contended by the first defendant that even pursuant to the alleged partition deed dated 18.11.1976, the plaintiff and the first defendant have jointly alienated the properties belonging to the family and therefore, the partition deed cannot be said to have been acted upon as well. The first defendant also claims that his wife, in and by settlement deed dated 19.09.2002, had settled the property in favour of the first defendant and in turn, the first defendant has also alienated the same in favour of the third defendant on 05.10.2005. It is relevant to note here that the second defendant is the wife of the first defendant.

3.3.The third defendant filed an independent written statement stating that the first defendant, along with the plaintiff, even after the alleged 17.11.1986 family partition, have sold lands comprised in S.No.260/1 on 02.07.1980, where the parties have admitted that the first defendant is also in joint possession and enjoyment of the said property and in such circumstances, the theory of unregistered family partition stands falsified. It is also contended that claiming an imaginary pathway on the northern side and with ulterior motives, the suit has been filed. It is also contended by the third defendant that he is a bonafide purchaser, under registered sale deed dated 05.10.2005 and his vendor has derived absolute right by registered settlement deed dated 19.09.2002. The third