JUDGMENT: The unsuccessful plaintiff before the Courts below has filed this appeal and on his death, his legal representatives were brought on record as appellants 2 to 10. This appeal is directed against the dismissal of the suit as confirmed by the First Appellate Court in A.S.No.236 of 1990 on the file of the Court of Principal District Judge, Madurai. 2. The parties have been arrayed as described in the suit. 3. The ejectment suit was filed on 15.2.1982 with the following plaint averments. The plaintiff is the younger brother of the first defendant. The suit property of 44 cents comprised in T.S.No.802/5/2 is situate at Ismailpuram 8th lane, Munichalai, Madurai Town, and it originally belonged to Majan Beebi Sahiba, Paternal grandmother of the plaintiff, Syed Mali Batcha. The suit property was partitioned on 30.9.1967 between the co-owners, viz., Syed Malik Batcha,the plaintiff, Ameena Bibi Sahiba, Fathima Bibi Sahiba, A.Syed Khader Batcha, A.Syed Shamsudeen and M.Syed Ahamed Batcha. As per the partition on 30.9.1967, in which all the co-owners have signed accepting the partition plan, plot Nos.3, 6 and 9 fell to the share of the plaintiff. Plot No.6 mentioned in the partition plan is the suit property. The other sharers in the partition plan took their respective shares of allotment and they were enjoying the same. In 1968, as per the request made by the first respondent, who is the eldest brother of the plaintiff, the plaintiff leased out the suit property on a monthly rent of Rs.20 for the vacant site. The rent of Rs.20 per month was paid by the first defendant till December, 1975 and from January 1976 onwards, Rs.30 per month was paid towards rent. In 1968, the first defendant put up three thatched houses with mud walls in the suit vacant site without the written consent of the plaintiff and let out the same to defendants 2 to 4. The defendants 2 to 4 are paying rent to the first defendant. The first defendant agreed to pay the property tax on behalf of the plaintiff, which was assessed to the suit property in 1976. The defendants 2 to 4 are paying rent to the first defendant. The first defendant agreed to pay the property tax on behalf of the plaintiff, which was assessed to the suit property in 1976. The first defendant was paying the tax in his name and also obtained the signature of the plaintiff in a petition addressed to the corporation of Madurai, falsely representing to the plaintiff that the assessment was wrongly made in the name of the first defendant since the assessment related to the property of the first defendant, which is lying on the west in the same survey Number. On coming to know of the same, the plaintiff presented a petition to the Corporation authorities to assess the tax for the suit property in his name as he is the real owner of the said property after deleting the name of the first defendant. 4. The plaintiff, with intention to put up a pucca building in the suit site, had applied for sanctioned plan for which he has got sufficient funds. Though the first defendant actually agreed to vacate the suit property, he was evading and lawyer’s notice was caused on 29.12.1981. Copy of the notice was marked to defendants 2 to 4. The first defendant has not vacated and handed over possession of the suit property and, therefore, the suit has been filed for ejectment of defendants. The suit property was leased out only as vacant site and the superstructure was put up by the first defendant without the written consent of the plaintiff. So the Madras Buildings (Lease and Rent Control) Act is not applicable to the suit. The plaintiff also claimed damages for use and occupation from 1.2.1982. 5. Defendants 1 to 3 remained ex parte and the suit was resisted only by the fourth defendant by filing written statement on 2.4.1983 in which the plaint averments have been denied. It is also denied that he is further resisted by the fourth respondent/defendant that the plaintiff has no title to the suit property and that there is no landlord and tenant relationship between the defendants 1 and 4. The fourth defendant is in occupation of the property for more than 27 years, which has no door No. and the superstructure, viz., thatched hut was put up by him alone at his own cost after raising the low level pits. The fourth defendant is in occupation of the property for more than 27 years, which has no door No. and the superstructure, viz., thatched hut was put up by him alone at his own cost after raising the low level pits. The door No.10 A/1/2 is not the property of the plaintiff and the said door No. is not in T.S.No.802/5/2. The first defendant filed R.C.O.P.No.12 of 1974 for eviction from the portion in occupation of the fourth defendant and on contest of denial of title, the petition was dismissed. The first respondent also filed a suit in O.S.No.383 of 1976 for declaration and possession and the same was dismissed. The appeal preferred by him against the dismissal of the suit was also dismissed. The fourth defendant filed additional written statement on 20.2.1990 in which it is stated that the suit without a declaratory relief of title is not maintainable. The fourth defendant is in possession and enjoyment of the suit property for the past 34 years in the suit property and the plaintiff or anybody has got no right or interest or title over the suit property. Even assuming that the plaintiff has any title, the same is lost by adverse possession and the fourth defendant has perfected title to the suit property and is in possession and enjoyment of the suit property. 6. Before the trial Court, the plaintiff, viz., deceased Syed Malik Basha, examined himself as P.W.1 and marked Exs.A-1 to Ex.A-38 and to rebut such evidence, the fourth defendant examined himself as D.W.1 besides examining one Anbusamy, Surveyor, as D.W.2 and Exs.B-1 to B-15 were marked on the side of the fourth defendant. Exs.C-1 to C-4, reports and plans filed by the Advocate Commissioner, were marked as Court documents. The trial Court, considering such evidence adduced on both sides and exhibits marked and also considering the reports and plans submitted by the Advocate Commissioner, found that the suit for possession without declaratory relief is not maintainable and also recorded finding that there is no landlord-tenant relationship between the plaintiff and the fourth defendant and that the plaintiff has not proved his title to the suit property and dismissed the suit. The plaintiff also lost his case in appeal in A.S.No.236 of 1990 filed before the first Appellate Court. The plaintiff also lost his case in appeal in A.S.No.236 of 1990 filed before the first Appellate Court. Before the first Appellate Court, the plaintiff filed I.A.No.164 of 1991 to receive additional documents and the same was allowed and the documents have been received and marked as Exs.A-39 and A-40. 7. At the time of admission of the second appeal, the following substantial question of law was framed for consideration: “Whether, in the light of the pleading of the fourth defendant and his admission as D.W.1 that he has no title to the suit property and in the light of Exs.A-39, A-1, A-2 and B-15 which established the plaintiff’s case, the dismissal of the suit is legal and proper?” 8. Heard the learned senior counsel for the appellants and the learned counsel for the fourth respondent/defendant. 9. The suit property is 598 Sq.ft. out of 44 cents comprised in T.S.No.802/5/2. The plaintiff’s claim for title in the suit property is disputed and denied by the fourth defendant, who alone resisted the suit and who, according to the plaintiff, is only a sub-tenant under the first defendant, elder brother of the plaintiff, to whom the suit property was leased as vacant site on a monthly rent of Rs.20 in the year 1968, which was enhanced to Rs.30 in January, 1976. It is seen that the entire 44 cents in the suit property originally belonged to one Majan Seebi Sahiba in view of the purchase as per Sale Deed Ex.A-39 dated 16.10.1936 from her husband Syed Hyder Ali who purchased the same from one Vafir Bibi Sayeeba as per registered Sale Deed dated 15.1.1925. Syed Abbad abas and Syed Mustafa are the sons and Ammena Bibi is the daughter of Syed Hyder Ali and Majan Bibi. Syed Khader Batcha and Syed Shamsudeen are the sons and Fathima Bibi is the daughter of Syed Abbas. The first defendant Syed Ahamed Batcha and the plaintiff Syed Malik Batcha are the sons of Syed Mustafa. Zamruth is the daughter of Ameena Bibi. As per sale deed Ex.A-39, the grandmother of the first defendant purchased the suit property of 44 cents comprised in T.S.No.802/5/2 and also another property in T.S.No.794/16 to 22 in old Ward No.1 new Ward No,3, Munichalai, Syed Ismailpuram. Zamruth is the daughter of Ameena Bibi. As per sale deed Ex.A-39, the grandmother of the first defendant purchased the suit property of 44 cents comprised in T.S.No.802/5/2 and also another property in T.S.No.794/16 to 22 in old Ward No.1 new Ward No,3, Munichalai, Syed Ismailpuram. Therefore, it is clear from Ex.A-39 that the 44 cents comprised in T.S.No.802/5/2 originally belonged to the paternal grandmother of the plaintiff and the first defendant. According to the plaintiff, his elder brother first defendant, his paternal aunt Ameena Bibi and the senior paternal uncle’s sons and daughter viz., Syed Khader Batcha and Syed Shamsudeen and Fathima Bibi partitioned the said 44 cents on 30.9.1967 during which time, the plan was prepared in which all the co-owners have signed signifying the acceptance of the plots allotted to them. The said partition plan Ex.A-1. As per the said partition arrangement under the plan Ex.A-1, the plot Nos.3, 6 and 9 were allotted to the plaintiff, plot Nos.1, 4 and 10 were allotted to the first defendant and plot Nos.2, 5 and 8 were allotted to Ameena Bibi. According to the plaintiff, plot No.6 measures 598 Sq.ft. in the suit property. Pursuant to the said partition arrangement, the respective sharers have been allotted to the co-owners and Ameena Bibi’s daughter Zamruth Bibi sold her share as per sale deed Ex.A-40 dated 8.4.1983 settled in her favour by her mother Ameena Bibi after putting up building. It is mentioned that her mother Ameena Bibi gifted the property to her and settled the same in her favour as per the partition plan dated 30.9.1967, viz., Ex.A-1. If at all the partition arrangement can be challenged, it can be only by the first defendant, elder bother of the plaintiff, and he remained ex parte. The first defendant also supported the case of the plaintiff in the reply notice Ex.A-8 dated 20.1.1092 to the lawyer’s notice caused by the plaintiff under Ex.A-3 dated 29.12.1981 and that by obtaining the lease from the plaintiff, he put up construction in the suit property and let out the same to the tenants. It is well settled that "Koor chit" and unregistered partition deed are admissible in evidence for collateral purpose to prove the factum of possession pursuant to the family arrangement reduced into writing. It is well settled that "Koor chit" and unregistered partition deed are admissible in evidence for collateral purpose to prove the factum of possession pursuant to the family arrangement reduced into writing. In the partition plan Ex.A-1, the plaintiff and all the co-owners have signed indicating the acceptance of the plots allotted the them. Therefore, a reliance can be placed upon the partition plan Ex.A-1 to prove the factum of possession to the family arrangement. 10. The Advocate Commissioner visited the suit property on 29.4.1982 and has filed a report Ex.C-1 stating that the suit property is located at T.S.No.802/5/2 and the present door No. is 10A/1-2. As per Exs.A-25 to A-29, the property tax for the suit property bearing door No.10A/1-2 has been paid by the plaintiff in the name of his elder brother, the first defendant, for the first half year 1980-81, first half year 1981-82, second half year 1981-82, first half year 1982-83 and the second half year 1982-83 respectively. A special notice was issued to the plaintiff to enhance the property tax in respect of the suit property under Ex.A-30. It is seen from Ex.A-31 that change of name was made in the Property Tax Demand Register and the name of the plaintiff was incorporated by deleting the name of the first defendant. In Ex.A-31, it is also mentioned that as per partition deed 30.9.1967, the plaintiff is the owner of the property in which the fourth defendant and defendants 2 and 3 have been in occupation. Such change was made with effect from the second half year 1983-84 and after such order, the plaintiff has been paying the property tax for the first and second half year 1985-86, second half year 1986-87, first and second half year 1987-88, first and second half year 1988-89, and the first and second half year 1983-84 under Exs.A-32 to A-37 respectively. These documents clinchingly prove that it is the plaintiff, who is entitled to the suit property, viz., 598 Sq.ft. out of 44 cents comprised in T.S.No.802/5/2. 11. The suit property was leased out as vacant site by the plaintiff to his elder brother, the first defendant, and it appears that he put up construction and let out the same to defendants 2 to 4. out of 44 cents comprised in T.S.No.802/5/2. 11. The suit property was leased out as vacant site by the plaintiff to his elder brother, the first defendant, and it appears that he put up construction and let out the same to defendants 2 to 4. The first defendant also was paying property tax in his name and after change of name, the plaintiff was paying the property tax as seen in Exs.A-32 to A-37. The first defendant, who became lessee of the vacant site under his younger brother, plaintiff, put up construction and let out the same to defendants 2 to 4 and claiming himself as owner of the suit property filed the R.C.O.P.No.12 of 1974 against the fourth defendant for eviction. It was dismissed on the ground of denial of title by the fourth defendant. Ejectment suit filed by the first defendant against the fourth defendant in O.S.No.383 of 1976 was dismissed and the appeal filed by the first defendant in A.S.No.34 of 1978 was also dismissed holding that the first defendant is not the owner of the suit property and the fourth defendant has also not proved that he had perfected title to the suit property by adverse possession. The case of the fourth defendant that the suit property is in fact a poramboke, in which he put up the building occupied by him, was also not accepted by the said Courts. As rightly argued by the learned senior counsel for the plaintiff/appellant, it is not open to the fourth defendant to put-forth the contention that the suit is not maintainable in that the first defendant, who became lessee under his younger brother plaintiff, remained ex parte. Though it is claimed by the fourth defendant that he put up the building occupied by him in the suit property, there is no satisfactory evidence to that effect and the same was not proved by the fourth defendant. The fourth defendant as D.W.1 admitted in his evidence that he has not paid any property tax to the suit property in the superstructure claimed to have been put up by him. Though he has stated in cross-examination that he made application for assessment of property tax, he would admit that he has not filed the copy of the said petition and had also not taken steps to send for the same. Though he has stated in cross-examination that he made application for assessment of property tax, he would admit that he has not filed the copy of the said petition and had also not taken steps to send for the same. Admittedly, he has not produced any document to show that he has been in possession of the suit property from 1955. Further, he has admitted in his cross-examination that he came to know that the suit property belonged to the plaintiff only after filing of the suit. As per Ex.B-15, Survey Land Register Extract, the suit property comprised in T.S.No.802/5/2 stands in the name of Syed Hyder Ali, husband of Majan Bibi Sahiba, who became owner in view of Ex.A-39. The suit property in T.S.No.802/5/2 was partitioned between Syed Malik Batcha, plaintiff, his elder brother, Syed Ahamed Batcha, his aunt, Ameena Bibi Sahiba, Fathima Bibi Sahiba, A.Syed Khader Batcha and A.Syed Shamsudeen as per the partition arrangement on 30.9.1967 and partition plan was drawn under Ex.A-1 in which plot Nos.2, 5 and 8 were allotted to Ameena Bibi. As per the said plan, she was allotted the property bearing door No.10A/1 and Exs.B-6 and B.7 relate to that property assessed to tax in the name of Ameena Bibi. 12. The plaintiff has clearly proved that he is the owner of the suit property, which was leased by him as vacant site in the year 1968, in which the first defendant after putting up construction, let out the same to defendants 2 to 4. In fact, the first defendant also filed R.C.O.P.No.12 of 1974 claiming that he is the owner of the suit property to evict the fourth defendant and being unsuccessful that his title was not proved, the first defendant filed the ejectment suit in O.S.No.383 of 1976 and after the dismissal of the suit, he preferred appeal in A.S.No.34 of 1978 in which also he was not successful in view of the fact that he failed to prove that he has got title to the suit property. 13. The decision relied on by the learned counsel for the fourth defendant in Soura Beeviammal v. Ameena Ammal, 94 L.W. 502 is on different facts and, therefore, is not applicable to the facts of this case. 14. 13. The decision relied on by the learned counsel for the fourth defendant in Soura Beeviammal v. Ameena Ammal, 94 L.W. 502 is on different facts and, therefore, is not applicable to the facts of this case. 14. The decision of the Apex Court relied on by the learned counsel for the fourth defendant in Tirumala Tirupati Devasthanams v. K.M.Krishnaiah, (1998)3 M.L.J. 49 (S.C.): (1998)3 S.C.C. 331 is on different facts. 15. Therefore, it is clear that both the Courts below have not given proper finding with regard to title of the suit property, which was allotted to the share of the plaintiff as per Ex.A-1. and also that it was leased by the plaintiff to his elder brother first defendant, who, after putting up construction, let out the same to defendants 2 to 4. Therefore, the finding of the First Appellate Court has to be interfered with and set aside. 16. The plaintiff also claims damages for own use and occupation of the suit property from 1.2.1982 and the same is relegated under O.20, Rule 12, C.P.C., to be enquired in separate proceedings. 17. In the result, the second appeal is allowed with cost. The judgment and decree passed by the First Appellate Court are set aside and the suit is decreed as prayed for. The claim for damages is relegated for separate enquiry under O.20, Rule 12, C.P.C.