JUDGMENT

DR.G.JAYACHANDRAN,J.

and C.KUMARAPPAN,J.

This Appeal Suit is filed by the plaintiff, who has lost the suit for partition preferred against his brother. The parties are Muslims and governed by their personal law.

2. The gist of the averments in the plaint is that the suit property morefully described in the plaint was purchased in the name of the first defendant, Babajan on 23.07.1973 from and out of common fund of the family. Thereafter, the plaintiff and the first defendant have jointly improved the property by constructing a building and they were in joint possession and enjoyment of the same. There was no division of the property. While so, in the year 1978, the brothers felt inconvenient to remain in joint possession of the property and therefore, a partition deed was entered into on 02.06.1978, wherein, the plaintiff, the first defendant Babajan and the other brother, Hafeezjan were parties. Accordingly, the suit property was allotted to the plaintiff and the first defendant equally and the said partition deed was duly registered. Since difference of opinion between the plaintiff and the first defendant cropped up, it was suggested to the first defendant to divide the property and allot a share, but that was declined by the first defendant, which has led to filing of the suit seeking partition. 3. Pending suit, the first defendant, Babajan died and hence, his legal heirs were impleaded as the defendants 2 to 6. The defendants filed a written statement denying the claim made in the plaint, ascertaining that the suit property was originally purchased as a vacant site by the first defendant from and out of his funds and developed by the first defendant by putting up construction. The alleged partition deed dated 02.06.1978 was denied and the averment that in the said partition deed, the suit property was allotted to the plaintiff and the first defendant was also denied. In the written statement, it has also been asserted that the plaintiff earlier instituted a suit before the Principal Sub Court, Trichy in O.S.No.562 of 2000 claiming partition based on alleged oral gift (Hiba) dated 01.12.1988, stating that under the Hiba, half share in the suit mentioned property was allotted in favour of the plaintiff, to which one of his son and wife of the first defendant were witnesses to it. The said suit was contested by stating that the alleged oral gift dated 01.12.1988 is a figment of imagination and no such gift was made by the deceased first defendant to and in favour of the plaintiff and the claim of joint possession was also denied. However, the defendants in their written statement admitted that the plaintiff was a permissive occupant. The previous suit in O.S.No.562 of 2000, when posted for trial, the plaintiff allowed it to be dismissed for default.

4. It is further stated in the written statement that another suit in O.S.No.780 of 2000 before the II Additional District Munsif Court, Trichy against the Municipal Corporation, Trichy for declaration and injunction, was instituted by the plaintiff ascertaining right over the suit property. In that suit, the defendants have got themselves impleaded and contested the matter. The defendants pointed out that the plaintiff having abandoned the earlier suit in O.S.No.562 of 2000, pegging his right based on an oral gift, there is no cause of action for the present suit. Further, in the written statement, the defendants have narrated how the property morefully described in the plaint schedule is owned by them exclusively. The defendants pointed out suppression of fact of the earlier suit filed by the plaintiff and terming the other suits filed by him as vexatious litigation, they sought for dismissal of the suit.

5. The Trial Court framed issues based on the above pleadings of the parties. On the side of the plaintiff, the plaintiff and one Ganesan were examined as witnesses, P.W.1 and P.W.2 and two exhibits, namely, the certified copy of the partition deed dated 02.06.1978 in or