The plea of adverse possession and title raised simultaneously is inconsistent and contradictory.

JUDGMENT :

(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 23.04.2008 passed in A.S.No.23 of 2007 on the file of the Subordinate Court, Dharapuram, reversing the Judgment and Decree dated 19.01.2007 passed in O.S.No.56 of 2001 on the file of the District Munsif Court, Dharapuram.)

1. Challenge in this second appeal is made to the judgment and decree dated 23.04.2008 passed in A.S.No.23 of 2007 on the file of the Subordinate Court, Dharapuram, reversing the judgment and decree dated 19.01.2007 passed in O.S.No.56 of 2001 on the file of the District Munsif Court, Dharapuram.

2. The second appeal has been preferred by the first defendant in O.S.No.56 of 2001.

3. Suit for partition.

4. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

5. Shorn of unnecessary details, according to the plaintiff, she and the defendants 1 to 4 are the children of the deceased Ramasamy Gounder and the suit properties are the self-acquired properties of the deceased Ramasamy Gounder and Ramasamy Gounder’s wife pre-deceased him and he died intestate in the year 1993 and after his demise, the suit properties had been in the possession and enjoyment of the plaintiff and the defendants in common and thus, the plaintiff is entitled to 1/5th share in the suit properties as the legal heir of the deceased Ramasamy Gounder. Of late, the first defendant in particular and the other defendants had failed to handover the share of properties derived from the suit properties to the plaintiff and hence, according to the plaintiff, she had been necessitated to demand the partition of her share in the suit properties and as her request had been not complied with by the defendants, according to her, she has been necessitated to lay the suit for partition.

6. The first defendant resisted the plaintiff’s suit by filing the written statement and additional written statement and according to him, the suit laid by the plaintiff is not legally sustainable and the suit properties are not the self-acquired properties of the deceased Ramasamy Gounder. The suit properties are the ancestral properties of the deceased Ramasamy Gounder and for the purpose of discharging the debts, the suit properties were alienated in the year 1949 and 1953 with the right of re-conveyance to the third parties and subsequently, the suit properties had been again reconveyed in favour of Ramasamy Gounder during 1958 & 1959 and Ramasamy Gounder had acquired the suit properties by way of reconveyance as the manager of the family and therefore, the suit properties are only the ancestral properties of the deceased Ramasamy Gounder and further according to the first defendant, Ramasamy Gounder did not die intestate in the year 1993 as alleged by the plaintiff and on the other hand, he died on 14.12.1987 itself and further, according to the first defendant, the plaintiff and the defendants 2 to 4 had been given in marriage several years prior to the institution of the suit by providing adequate seer and articles and Ramasamy Gounder during his lifetime in a fit state of mind and health without any inducement and on his own volition, bequeathed his share in the suit properties in favour of the first defendant by way of a Will dated 12.12.1985 and the plaintiff and the defendants 2 to 4 are very well aware of the execution of the abovesaid Will by the deceased Ramasamy Gounder in favour of the first defendant and accordingly, not endeavoured to secure any share in the suit properties for several years after the demise of the deceased Ramasamy Gounder and furthermore, according to the first defendant, after the demise of the deceased Ramasamy Gounder, he has been openly and continuously enjoying the suit properties adverse to the interest of the plaintiff and the defendants 2 to 4 and therefore, had acquired right over the suit properties by way of adverse possession also and the plaintiff and the defendants 2 to 4 had