Exclusion from property enjoyment can lead to the limitation of a suit for partition.

1. The plaintiff is the appellant herein. The suit was filed by the plaintiff for partition.

2. The case of the plaintiff was that the property originally belonged to one Annamalai Chetty, who had three sons and in the partition that took place amongst three sons, the suit property was allotted to the share of Veerana Chetty, the second son of Annamalai Chetty. The said Veerana Chetty, had two sons and the plaintiff is the son born to the first wife and therefore, he is entitled to 4/9 share in the suit property.

3. The respondents/defendants filed a statement admitting that the properties were allotted to the share of Veerana Chetty, but denied the status of the plaintiff, as a son of Veerana Chetty and disputed the marriage of Veerana Chetty with Lakshmi Ammal, the mother of the plaintiff. It is further stated that in the year 1951, Veerana Chetty, sold a portion of the property in favour of his wife Ponnammal and thereafter, settled the remaining portion in favour of first defendant represented by his wife-Ponnammal, and therefore, the first defendant and Ponnammal became the owner of the property. After the death of the said Ponnammal, the defendants became absolute owner of the suit property.

4. The Trial Court held that the appellant/plaintiff is the son of Veerana Chetty, whose first wife was Lakshmi Ammal and that has been admitted by Veerana Chetty, himself in Ex.A5, viz., the settlement deed executed by him in favour of the first defendant and as the property is the ancestral property in the hands of Veerana Chetty, he cannot sell the property or settle the property and those deeds are not binding on the plaintiff, as the plaintiff is one of the co-parceners entitled to 1/3 share in the properties.

5. The First Appellate Court reversed the findings of the Trial Court and allowed the appeal on the ground of limitation that admittedly the plaintiff was excluded from enjoyment of the property from the year 1957 and therefore, he is not entitled to the partition. Hence, this Second Appeal.

6. At the time of admitting this Second Appeal, the following substantial question of law was framed by this Court: - Has not the Lower Appellate Court failed to see that the burden of proving exclusion of the plaintiff from possession of the joint family property is only on this defendant.

7. It submitted by the learned counsel appearing for the appellant that the Lower Appellate Court erred in allowing the appeal on the ground of limitation when no issue was framed by the Trial Court regarding limitation. It is further contended by the learned counsel that it is admitted that the property was the ancestral property in the hands of Veerana Chetty and Ex.A5, would prove that the plaintiff is the son of Veerana Chetty, whose first wife was Lakshmi Ammal and therefore, the plaintiff became entitled to 1/3 share in the property.

8. The learned counsel appearing for the appellant further submitted that in the absence of any issue regarding limitation, the Lower Appellate Court ought not to have dismissed the suit on the ground of limitation and between the co-parceners, there is no question of limitation in the absence of ouster and in this case, it has not been pleaded or proved by the respondents that the plaintiff was ousted from enjoying the property exclusively and the respondents/defendants have not discharged the burden.

9. On the other hand, the learned counsel appearing for the respondent submitted that eventhough limitation was not pleaded in the written statement, being a question of law, it can be raised even in the second appeal stage and evidence was let in by the parties regarding that limitation and considering the evidence of parties, the Lower Appellate Court has rightly held that the suit claimed is barred by limitation.

10. It is further submitted by learned counsel appearing for the respondent that it is admitted by the plaintiff in cross- examination that even in the year 1957, he issued notice claiming part