Claiming partition requires proof of joint possession and enjoyment; absence of such evidence leads to dismissal of partition suits.

JUDGMENT :

G. Jayachandran, J.

The appellants herein are the defendants 3 to 6 in the suit for partition. The subject matter of the suit is a part of a larger extent of land measuring a total extend of 6.17 acres in S.No:17, R.S No: 96.

2. Out of 6.17 acres of land, 1/3rd was purchased by Kuttiayappa Gounder S/o Kaithamalai Gounder, who purchased it on 06.04.1958 and the balance 2/3rd undivided share ie 4.12 extent of land was purchased by Chinnathambi Gounder under two sale deeds dated 06.06.1966. Chinnathambi is father of the plaintiffs.Kuttiayappa Gounder is the predecessor-in-title of Defendants 1 to 9.

3.The case of the plaintiffs is that, though the property was purchased by these two persons at different point of time, they were jointly enjoying the property commonly without any partition. While so, on 03.02.2014, the defendants who belong to the branch of Kuttiyappa gounder, divided their share in the suit property among themselves without the knowledge and consent of the plaintiffs who are from the branch of Chinnathambi Gounder. Knowing the unilateral partition among the descendants of Kuttiayappa Gounder, detrimental to the interest of the plaintiffs, who were enjoying the property commonly with the defendants, the suit for partition is laid after causing notice.

4. The 3^rd and 6^th defendants entered appearance through a counsel and contested the suit. Rest of the defendants remained absent and set exparte.

5. In the written statement, apart from plea of non-joinder of all the legal heirs of Kuttiayappa Gounder and improper valuation of the Suit and Court Fees, the 3 defendant, who is the widow of Kaithamalai, the deceased son, Late T.K.Subramaniam, had mainly contended that, ever since the purchase of the property her father in law Kuttiyappa Gounder enjoying the 1/3rd of the suit property in S.No:96 as separate property. S.No 96 was also later sub- divided by metes and bound as S.No 96/3. After the demise of Kuttiyappa Gounder, his only daughter Angammal, who got married in the year 1978 relinquished her share in the property in favour of his four sons namely T.K.Palanisamy, T.K.Periyasamy, T.K. Subramaniam and T.K. Rangasamy. Thereafter, the four sons of Kuttiiyappa Gounder orally divided the property and enjoying 1/4th each. Kist were paid separately and had developed the land of their respective share individually.

6. T.K.Subramaniam, who was enjoying his share of property without any let or hindrance, died on 23.08.1999 leaving behind his widow and three daughters who are defendants 3 to 6. The ninth defendant in the suit is one of the sons of Kuttiyappa Gounder. On the ill advice of others, the 9 defendant joining hands with his sister Angammal filed suit O.S.No.8 of 2013 for larger share in the property. On the advise of elders, there was compromise among them and the suit was decreed on 12.03.2013. Consequentially, the partition deed dated 03.02.2014 was entered and division of the property recorded. The plaintiffs who are the third parties, have no right to challenge this partition deed entered among the lawful owners of the property, who inherited through Kuttiyappa Gounder.

7. The modified issues framed by the Trial Court are:-

1. Whether the property belonged to the fore-fathers of the parties was already partitioned between the plaintiffs and the defendants?.

2. Whether the Partition Deed dated 03.02.2014 entered be