JUDGMENT

The appellants have filed this appeal. They were the defendants in O.S.No.226 of 2007 who are the appellants herein, remains unsuccessful both before the Trial Court and before the First Appellate Court.

2. The respondent/plaintiff herein had filed a suit in O.S.No.226 of

2007 before the District Munsif Court at Arni to declare that the respondent was the owner of the schedule C suit property and to direct the appellants/defendants to deliver the possession of the same to the respondent/plaintiff through Court. The said suit was also filed for directing the appellants/defendants to pay a sum of Rs.18,000/- for the damages of the use and occupation of schedule C suit property and also to pay a sum of Rs.500/- per month as monthly rent from the date of filing of the suit till the date of delivery of the possession.

3. The case was filed on the strength of Exhibit A2 Settlement Deed dated 14.02.2002 executed by J.Kamalaibai Ammal in favour of the respondent/plaintiff (1st appellant/respondent's mother). The suit was partly decreed by the Trial Court vide Judgment and Decree dated 29.07.2011 by holding that the respondent/plaintiff was the owner of the schedule C suit property in view of Exhibit A2 Settlement Deed dated 14.02.2002. The Trial Court however dismissed the suit as far as the other relief or payment of Rs.18,000/- towards damages for use and occupation of the aforesaid property and for payment of Rs.500/- per month towards monthly rent of the aforesaid property.

4. The appellants therefore filed A.S.No.32 of 2011 vide Judgment and Decree dated 29.07.2011 passed by the Trial Court in O.S.No.226 of

2007.

5. Aggrieved by the same, this appeal has been filed by the appellants/defendants.

6. This appeal was not admitted when it was listed for admission.

As was the practice of this Court, this court had ordered notice of admission on the respondent/plaintiff. After the notice was served on the respondent/plaintiff, the respondent/plaintiff appeared through his counsel.

7. In this appeal, the appellants/defendants has raised the following questions of law as substantial questions of law:-

“(i) Whether courts below right in holding that the defendant did not filed an application under section 10 of civil procedure code to stay the present suit because the earlier suit is partition pending between the parties ignoring the well settled position of law that legal points can be raised at any stage of the suit?

(ii) Whethe courts below right in decreeing the suit overlooking the position of law that the plaintiff is to prove his case instead of taking advantage of the defendant case, the plaintiff never proved by way of oral or documentary evidence that the properties were purchased by the respondent mother from her independent source of income?

(iii) Whether courts below right in decreeing the suit after knowing that the earlier suit is for partition between the parties even pending today and the plaint schedule property also shown as 1st item of property in that partition suit, ignoring the position that the present court became functious officio, when it had knowledge of the earlier suit for partition?

(iv) Whether the courts below right in ignoring the facts from the oral evidence of the respective parties that till the death of the parents of the appellant the properties were treated as joint family property and the appellant was in possession and enjoyment of the property as a joint family member overlooking this aspect of evidence, whether court below right in coming to an conclusion that the property is separate property of the appellant's mother?

(v) Whether the courts below right in decreeing the present suit ignoring the position of law, the partition suit between the brother is a major suit, where the nature of property and right of the parties in the suit property can be decided overlooking this aspect court below are not erroneous giving finding that the properties are self acquired property of the respondent's mother?”

8.