The legal principle established is that long and continuous possession coupled with hostile assertion of title and creation of records can amount to ouster of title, and equitable considerations should be taken into account in partition cases.

JUDGMENT

(Prayer: Appeal Suit filed under Order XLI Rule 1 r/w Section 96 of Civil Procedure Code to set aside the Judgement and Decree dated 09.01.2014 passed in O.S.No.88 of 2011 on the file of the III Additional District Court, Thiruvallore at Poonamallee, and decree the suit as prayed for.)

This appeal suit is filed against the judgment and preliminary decree passed in O.S.No.88 of 2011 dated 09.01.2014 by the III Additional District Court, Tiruvallur at Poonamallee. Herein after in this judgment parties would be referred to as per their array in the suit.

2. The case of the plaintiff is that Item No.1 & 2 of the suit schedule properties originally belong to the father of the plaintiff by name Thiyagarajan. The plaintiff’s father purchased the item No.1 of the suit schedule property under a registered sale deed dated 17.05.1945 and item No.2 of the suit schedule property under the registered sale deed dated 26.09.1946. The plaintiff’s father died in the year 1957 leaving behind two sons and three daughters. The plaintiff, 1st and 2nd defendants are daughters, the 3rd defendant is one son and the other son Govindharajan had passed away and the defendants 4 to 11 are his legal heirs. Therefore, the plaintiff, 1st defendant, 2nd defendant, 3rd defendant and the defendants 4 to 11 jointly are entitled to 1/5th share each in the suit schedule properties.

3. While so, in the year 2011, 3rd defendant was trying to sell the suit properties to defendants 12 & 13 and therefore, plaintiff issued a legal notice on 18.04.2011 requesting the other defendants to come for partition. Even thereafter, the defendants did not come forward and hence the suit.

4. The suit was not contested by the defendants 1 to 11. The 13th defendant, who is the subsequent purchaser, filed a written statement, where under it was mentioned that the defendant was not concerned with the item No.1 of the suit schedule property. As far as the item No.2 is concerned, the same was sold by the 3rd defendant and other son Govindharajan, whose legal heirs are defendants 4 to 11 by a sale deed dated 26.11.1977 to the vendor of the 13th defendant and from the said vendor, the 13th defendant purchased the property in the year 2005 vide registered sale deed bearing Doc No.4280 of 2005. Similarly, another portion in S.No.489/B3 was also purchased from 3rd defendant by a sale deed registered as Doc.No.1208 of 1983. From the said date, the defendants 12 & 13 are in possession and occupation of the said extents of the property and therefore, to the extend it is sold by the said sale deed, the suit is barred by limitation. On the strength of the said pleadings, the trial Court framed the following issues,

(a) Whether the plaintiff is entitled for 1/5th share in the suit property?

(b) Whether the plaintiff is entitled for the preliminary decree as prayed for?

(c) To what relief the plaintiff is entitled?

5. On the said issues, the parties let in evidence. Plaintiff examined himself as P.W.1 and Ex.A1 to A7 were marked. On behalf of the 13th defendant, one Vijaya Kumar Babu was examined as D.W.1 and Ex.A.1 to A.6 were marked. Thereafter, the trial Court proceeded to consider the case of the parties and found that the properties was self acquired property of the father of the plaintiff and that he died interstate and that he left behind three daughters and two sons and therefore, the plaintiff and defendants 1 to 3 and the defendants 4 to 11 will be entitled to his properties with 1/5 share each in his property.

6. However, the trial Court found that since in respect of the schedule II of properties, already 1 Acre and 50 Cents have been sold long back by Ex.B2 sale deed dated 26.11.1977 and Ex.B3 sale deed dated 01.09.1983. The suit is barred by limitation as the suit is filed only in the year 2011. However, in respect of the balance extent of the item No.2 of the suit schedule property, the trial Court held that the plaintiff, 1st defendant a