KAYAMBU (DIED) Vs. ATHI NARAYANAN SERVAI

JUDGEMENT

(1.) This litigation commenced two decades and two years ago, when one Kayambu filed a suit in O.S.No.48 of 1996 on the file of 'District Munsif cum Judicial Magistrate's Court, Mudukulathoor', which shall hereinafter be referred to as 'Trial Court' for the sake of convenience and clarity. This is a partition suit. There is no dispute that the suit was filed with a prayer for partition of suit properties and for half share in the same. To be noted, suit properties are eight items of properties as set out in the plaint. Further to be noted, there is only one defendant and that defendant is plaintiff's blood brother one Athi Narayanan Servai. Considering the very narrow scope on which this entire second appeal turns, it is not necessary to extract the eight items of suit properties.

(2.) Defendant Athi Narayanan Servai entered appearance, filed written statement and completed pleadings. After completion of pleadings, as many as six issues were framed in the Trial Court. Amongst these six issues, in the light of trajectory of the hearing in this second appeal before this Court, only one issue is pivotal, that issue is issue No.4 and the same reads as follows:

(3.) The aforesaid issue was answered against the plaintiff. To be noted, eight items of suit properties, of which partition was sought, undisputedly belong to one Chellamuthu Servai, father of plaintiff and defendant. It is also not in dispute that besides the plaintiff and defendant, Chellamuthu Servai has three other children, i.e., son by name Ponnuchamy and two daughters by name Kamatchi and Karuppayee. It is also not in dispute that these three children have not been made parties to the suit in the Trial Court. In the light of this undisputed position, Trial Court answered aforesaid issue No.4 against the plaintiff. Besides this, Trial Court also noticed the fact that there is an admitted oral partition of the suit properties and that the parties to the oral partition are in possession and enjoyment of their respective shares.