JUDGMENT :

ABDUL QUDDHOSE, J.

Prayer: Second Appeal is filed under Section 100 of CPC to call for the records relating to the Common Judgment and Decree dated 28.11.2019 made in A.S.No. 24 of 2018 on the file of the learned Additional District and Sessions Judge, Sivagangai against confirming the Judgment and Decree dated 14.12.2017 made in O.S.No. 82 of 2014 on the file of the Subordinate Judge, Devakottai and set aside the same and consequently allow this Second Appeal.

Prayer: Second Appeal is filed under Section 100 of CPC to call for the records relating to the Common Judgment and Decree dated 28.11.2019 made in A.S.No. 25 of 2018 on the file of the learned Additional District and Sessions Judge, Sivagangai against confirming the Judgment and Decree dated 14.12.2017 made in O.S.No. 82 of 2014 on the file of the Subordinate Judge, Devakottai and set aside the same and consequently allow this Second Appeal.

1. These Second Appeals have been filed challenging the concurrent findings of the Courts below. The defendant in the suit is the appellant herein. The suit in O.S.No. 82 of 2014 was filed by the respondent/plaintiff before the Sub Court, Devakottai seeking for partition in respect of her half share in the suit schedule property. The plaintiff had sought for partition based on two sale deeds executed in the name of the defendant as well as the plaintiff jointly and the said sale deeds are dated 08.03.2001, which have been marked as Ex.A1 and Ex.A2.

2. In the forthcoming paragraphs, the parties are described as per their litigative status in the suit. The plaintiff is the wife of Somasundaram and the defendant is the wife of AN.Lakshmanan. Both AN.Lakshmanan and Somasundaram are brothers. According to the plaintiff, since the defendant did not come forward to partition the suit schedule property, she was constrained to file the suit for partition. However, the defendant in the written statement has pleaded that the suit schedule property was purchased out of the funds belonging to her husband's mother, who is the mother-in-law of both the plaintiff and the defendant. The defendant has also contended in the written statement that she had spent a sum of Rs.1,87,949.56/- for maintaining the suit schedule property out of which the plaintiff is bound to pay her half share amounting to Rs.93,974.25/- to the defendant. According to the defendant, without paying the half share of the expenses, i.e., Rs.93,974.25/- the plaintiff is not entitled for partition. A counter claim was also made by the defendant in the suit for claiming the sum of Rs.93,974.25/- from the plaintiff.

3. Before the Trial Court, the plaintiff filed five documents, which were marked as exhibits A1 to A5 and one witness was examined on her side, namely, her husband Somasundaram, both as a power agent as well as her husband as PW-1. On the side of the defendant, 34 documents were filed, which were marked as exhibits B1 to B34 and the defendant herself was examined as DW-1. The Trial Court passed a preliminary decree for partition in favour of the plaintiff as prayed for in the plaint and rejected the counter claim filed by the defendant by dismissing the same. The following findings were given by the Trial Court while decreeing the suit in favour of the plaintiff and for rejecting the counter claim filed by the defendant:

(a) The counter claim of the defendant was not proved.

(b) The defendant has admitted in her cross-examination that the suit schedule property was purchased in the names of both the plaintiff and the defendant and the plaintiff is entitled for half share in the same.

4. As seen from the pleadings of the defendant through her written statement, it is clear that the defendant has claimed that the plaintiff is not entitled for partition only on the ground that the plaintiff has not reimbursed the expenses amounting to Rs.93,974.25/- which the defendant had incurred to maintain the suit schedule property. It is only for the first time before this Court in