COMMON JUDGMENT

The plaintiff, in a suit for partition and also being a defendant in a suit for permanent injunction filed by the 5th defendant in the suit for partition, is the appellant in both the above Second Appeals.

2.The parties are described as per their litigative status in the partition suit, namely O.S.No.184 of 2001.

3.The brief facts that are necessary for adjudicating the above Second Appeals are as follows:

The plaintiff, claiming to be the son through the 1st wife of his father, namely Nataraja Padayachi, filed the suit seeking partition and separate possession of his 1/7th share in the suit property. The 1st defendant is the 2nd wife of the said Nataraja Padayachi. The defendants 2 to 6 are the children of Nataraja Padayachi, born through the 2nd wife. The 6th defendant is the son in-law of one of the deceased daughters of Nataraja Padayachi, who died after the demise of Nataraja Padayachi. According to the plaintiff, his father Nataraja Padayachi, died intestate on 05.06.1996, all his properties would devolve equally amongst the plaintiff and the defendants. As the defendants were not coming forward to partition the suit properties, the plaintiff was constrained to issue a notice. However, the 5th defendant issued a reply with false allegations.

Therefore, the plaintiff instituted the suit.

4.The said suit was resisted by the defendants stating that the plaintiff had earlier filed a suit for partition in O.S.No.95 of 1982, as against his father Nataraja Padayachi and his brothers and the said suit ended in a compromise and the suit was subsequently withdrawn by the plaintiffs. According to the defendants, he had also executed a release deed dated 07.07.1983, on receiving a sum of Rs.6,500/- and on the same day, Nataraja Padayachi executed a Settlement Deed in favour of the plaintiff. In short, the defendants contended that the plaintiff had relinquished all his rights in the joint family properties, by way of registered documents which have also been acted upon and therefore, the plaintiff was not entitled to seek for a partition of the suit property. In the suit for injunction in O.S.No.49 of 2002, the 5th defendant in the partition suit, claiming to be the son of Nataraja Padayachi through the 2nd wife and being in possession of the property, approached the court and prayed for permanent injunction on the ground that the defendant, namely the plaintiff in the partition suit, had prevented the 5th defendant from carrying repairs to the dilapidated house.

5.Both the suits were tried together and were dismissed by the Trial Court.

6.Aggrieved by the dismissal of suit for partition, the plaintiff has preferred an appeal in A.S.No.73 of 2011. Aggrieved by the suit for permanent injunction, the 5th defendant preferred an appeal in A.S.No.2 of 2012. Both the appeals were heard together and the First Appellate Court dismissed the appeal as against the partition suit. However, the First Appellate Court reversed the judgment and decree of the Trial Court insofar as the suit for permanent injunction was concerned and granted the relief of permanent injunction. Aggrieved by the judgment and decree in these two appeals, the present Second Appeals have been preferred.

7.On 09.01.2019, the Second Appeal No.836 of 2018, which has been filed against the judgment and decree in A.S.No.73 of 2011 in O.S.No.184 of 2001 being a suit for partition, was admitted on the following two substantial questions of law:

"(1) Whether the courts below right in dismissing the suit for partition under the ground that there was already a settlement deed executed by father in favour of plaintiff and hence plaintiff could not claim any right over the property, ignoring the position of law that the present suit filed by the plaintiff claiming a share under the capacity that the legal heir of his father who died intestate leaving some properties which is absolutely belonged to him to succeed his legal heirs.?

(2) Whether the courts below right is dismissin