JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree dated 14.07.2004 on the file of the Subordinate Court, Padmanabhapuram made in A.S.No.59 of 2002 reversing the judgment and decree dated 22.01.2002 on the file of the Principal District Munsif Court, Padmanabhapuram made in O.S.No. 289 of 1998.)

1. The plaintiff is the appellant.

2. The plaintiff filed O.S.No.289 of 1998 before the District Munsif Court, Padmanabhapuram for the relief of partition. The suit was decreed and preliminary decree was granted in favour of the plaintiff for 1/3rd share. The 5th defendant filed A.S.No.59 of 2002 before the Sub-Court, Padmanabhapuram. The learned Subordinate Judge allowed the appeal and dismissed the suit. As against the same, the plaintiff has filed the present Second Appeal.

3. It is the case of the plaintiff that the suit schedule properties were originally owned by one Bakianathan who died instate leaving behind the plaintiff and two other sons namely, Selvamani and Gnanamani. Selvamani's legal heirs are the defendants 1 to 3. Gnanamani's legal heirs are the defendants 4 to 6. The plaintiff contended that the suit schedule properties are the separate properties of Bakianathan and on his death, he is entitled to 1/3rd share in the suit schedule properties. The plaintiff further contended that the parties are in joint possession of the suit schedule properties.

4. The 5th defendant filed a written statement contending that the daughters of Selvamani and Gnanamani have not been impleaded and the suit is bad for non-joinder of necessary parties. The defendant further contended that another property of Bakianathan had not been included in the suit schedule and hence, the suit is bad for partial partition. The 5th defendant further contended that he had put up a house in the suit schedule property in the year 1978 itself and he is in enjoyment of the said house property after making several improvements. The defendant further contended that since the defendant is in exclusive possession of the said house property, the plaintiff has lost his rights under the principles of Ouster.

5. The plaintiff had filed a reply statement contending that two items were purchased by Bakianathan under Exhibit A1. Out of this, the first item consisted of 7 ½ cents and it was orally partitioned among three brothers already and hence, the non-inclusion of the said property in the present suit would not attract the principle of partial partition. The plaintiff further contended that all the sons of Selvamani and Gnanamani have been impleaded and hence, there is substantial representation of their estate and hence, the non-inclusion of daughters would not be a fatal to the suit.

6. The plaintiff further contended that the possession is joint among the parties. Hence, the plea of ouster is not sustainable in law. The trial Court gave a finding that one of the items covered under Exhibit A1 sale deed has already been partitioned and hence, the present suit is not hit by the principle of partial partition. The trial Court has also found that the daughters of Selvamani and Gnanamani would claim their shares only within 1/3rd to be allotted to the legal heirs of Selvamani and Gnanamani and hence, the suit is not bad for non-joinder of necessary parties. The trial Court also found that the 5th defendant has put up a construction in the suit schedule properties and the plaintiff has agreed to pay his 1/3rd share of cost for the said construction. Hence, the trial Court decreed the suit for 1/3rd share in favour of the plaintiffs with a direction to the plaintiff to pay 1/3rd value of building to the 5th defendant.

7. The First Appellate Court reversed the finding of the trial Court and held that the suit schedule property belongs to the 5th defendant since he has perfected title by adverse possession. The First Appellate Court also found that the non-joinder of the daughters of Selvamani and Gnanamani would be fatal to the