A SEBASTIAN Vs. A ANTONY

JUDGEMENT

(1.) This Second appeal has been filed to to set aside the judgment and decree dated 25.10.1994 made in A.S.No.164 of 1993 on the file of the Principal Subordinate Court, Dindigul confirming the judgment and decree dated 07.11.1990 made in O.S.No.209 of 1998 on the file of the District Munsif Court, Dindigul.

(2.) The averments in the plaint filed by the plaintiff is as follows: The plaintiff and the defendant are sons of Arockiam. Arockiam has 4 sons viz., the plaintiff, defendant, one Mariyza packiam and one Arulappan. Out of the joint earning of said Arockiam and his sons, the properties were purchased in the name of Arockiam under a registered sale deeds dated 20.04.1959 and 04.05.1967 and all of them jointly enjoyed the same. The properties have been mortgaged in favour of one Subramani Gounder on 22.05.1974. In turn, the said Subramani Gounder assigned the same in favour of one Pitchaimuthu in an assignment mortgage deed dated 21.05.1987.

(3.) There was an oral partition between all the brothers and they were allotted separate items of properties. But, the plaintiff and his three brothers are drawing water from the common well in S.No.476/2Gby rotation. Accordingly, the plaintiff is drawing water once in 4 days. Plaintiff's father Arockiam also allotted a land in S.No.476/2F and S.No.568/22 for his life and after him, it should be taken equally by all his sons. From the date of oral partition, every one of the sharers are enjoying their respective shares of properties by paying kist. Except this defendant, all other brothers worked hard and saved something and purchased the land in S.No.476/1 and 476/3 and got transfer of patta in their names and enjoying them by paying kist. The properties allotted to the share of the defendant were also leased out to the plaintiff and the defendant is also estopped from contending otherwise.