JUDGMENT

The defendants in O.S.No.124 of 2001 on the file of the First Additional District Munsif, Dindigul are the appellants in this Second Appeal. The suit was for partition. It was filed by one Paulraj and his wife against one Selvaraj and Martin Manoharan. The father of the defendants namely, Chelladurai was the elder brother of Paulraj/first plaintiff. According to the plaintiffs, the suit property belonged to Janaki ammal, the mother of Paulraj and Chelladurai. The suit property was settled in her favour by one Savariappan on 07.06.1919 (Ex.A2). Janaki ammal died later. Thereafter, the suit property devolved on her sons namely, Chelladurai and Paulraj.

2.According to the plaintiffs, there was an oral partition between them and half share in the suit property was allotted to the plaintiff/Paulraj. Since he was employed out of the district, he leased out what was allotted to him to his brother Chelladurai. Chelladurai passed away in the year 1984. Thereafter, the sons of Chelladurai/the defendants were in enjoyment of the suit property. Under these circumstances, the plaintiffs issued a legal notice dated

30.03.2000 (Ex.A1). The defendants did not comply with the demand set out in the suit notice. Hence, the plaintiffs filed a suit in O.S.No.124/2021 seeking the relief of partition and seperate possesion of their share in the suit property.

3.The defendants filed their written statement resisting the suit claim.

According to the defendants, the suit is not maintainable. If at all the plaintiffs can only seek the relief of recovery of possession. They further contended that their father Chelladurai had obtained patta in his name and that the suit property is their absolute property. The revenue records reflect only the name of Chelladurai for several decades. The defendants sought dismissal of the suit.

4.Based on the rival pleadings, the trial Court framed the necessary issues. The second plaintiff examined herself as PW1 and one Antony was examined as PW2. Exs.A1 to A4 were marked. The first defendant Selvaraj examined himself as DW1 and Exs.B1 to B38 were marked.

5.After consideration of the evidence on record, the trial Court passed a preliminary decree granting half share in the suit property in favour of the plaintiffs. Aggrieved by the same, the defendants filed A.S.No.229 of 2004 before the Additional Sub-Court, Dindigul. By the impugned judgment and decree, dated 20.07.2010, the appeal was dismissed and the decision of the trial Court was confirmed. Challenging the same, the Second Appeal came to be filed.

6.The Second Appeal was admitted on the following substantial questions of law:

“i) Whether the mutation in revenue records will confer title to the defendants 1 and 2 or not?

ii) Whether the plaintiffs are estopped from claiming title to the suit property?”

7.The learned counsel appearing for the appellants reiterated all the contentions set out in the memorandum of grounds. He pointed out that the plaintiffs marked Ex.A3 claiming that they had leased out the suit property, which was allotted to their father and that the defendants, who are the sons of Chelladurai are only lease-holders. Therefore, they are clearly estopped from making a further claim for partition. He would also state that Ex.A2 settlement deed executed in favour of Janaki ammal contained number of properties. The suit property was one among the several items. The plaintiffs choose to remain silent in respect of the other items ; only in respect of the suit items, they filed the present suit. He submitted that unless all the properties belonging to the joint family are included in the suit schedule, a suit for partition cannot be maintained. He also faulted the decision of the trial Court for failing to discuss the contentions advanced by the defendants. He called upon this Court to answer the substantial questions of law in favour of the appellants, to set aside the impugned judgments and decrees and to dismiss the suit.

8.Per contra, the learned coun