IMPORTANT POINT
Mere non-participation the rent and profits the land a co-sharer does not amount to ouster.

Ms. S. Vimala, J.—Whether a co-owner, without pleading and proving that his possession was ‘nee vi nee clam nee precario i.e., peaceful, open and continuous, for the statutory period, can succeed in non-suiting the plaintiff?” - is the issue to be considered in this second appeal.

This is not a case of the father denying the right to property to the son, but it is vice versa. This is a case where, though the property stands in the name of the father, which is admittedly a joint family property, the son denies the right of the father to claim his share of the property on the plea of ouster. Without the imperative pleadings and evidence regarding ouster, how far the plea of the son is maintainable is the issue to be decided.

2. The father has filed the suit both against his son/vendor, the first defendant, and defendants 2 to 5/the purchasers of Item Nos. 1 to 4 of the suit property (from the first defendant alone), claiming half-share in the entire 8 items of the suit property. A preliminary decree was passed in accordance with the claim made in the plaint. Challenging the same, first appeal was filed by defendants 2 to 5. The first appeal was dismissed and thereby the judgment of the Trial Court got confirmed. Aggrieved over the judgment and decree of the First Appellate Court, the second appeal has been filed by the defendants 2 and 3.

Brief Facts:

3. The first defendant is the only son of the plaintiff. The suit properties are the ancestral properties even in the hands of plaintiff’s father, Arumugampillai. Plaintiff’s father and his (father’s) brothers got the properties divided by virtue of the partition deed dated 4.7.1983. In the partition, the suit properties were allotted to the share of plaintiff’s father Arumugampillai.

4. Arumugampillai had three sons namely Kannan-plaintiff, Pandurangan and Mani. There was an oral partition among three of them and the suit properties were set apart to the share of plaintiff.

5. The first defendant has no right to alienate the entire extent of the properties. At the most, he can sell only his half-share of the properties. Without any right, the first defendant has executed sale-deeds in favour of defendants 2 to 5. Hence, the plaintiff was constrained to file the suit for partition.

6. The first defendant remained ex parte. The second defendant filed the written statement with the following contentions:

1. The suit properties originally belonged to the plaintiff’s ancestors and the plaintiff got the same by way of partition;

2. The plaintiff did not live as a member of the joint family and he married according to his Will and wish and got separated from the family. Therefore, he cannot be said to be a member of the joint family;

3. The plaintiff has lost title by not objecting to the sale-deeds executed by the first defendant and also by not making any claim over the suit properties.

7. The fifth defendant filed a separate written statement, wherein the contents are as under:

1. The first defendant has prescribed title by adverse possession;

2. The plaintiff never objected to the sale-deeds executed by the first defendant and therefore, he is estopped from denying the title of the first defendant;

8. The Trial Court framed the following three is sues:

1. Whether the suit properties are joint family properties belonging to the plaintiff and the first defendant?

2. Whether the plaintiff is entitled to a share in the suit properties? What is the share?

3. To what relief, the plaintiff is entitled to ?

9. Holding that the suit properties are joint family properties belonging to the plaintiff and the first defendant, the Trial Court granted the decree for partition and separate possession of plaintiffs half-share over the suit properties. The First Appellate Court also confirmed the findings of the Trial Court. Hence, the second appeal.

10. The substantial questions of law, on which the second appeal was admitted are modified during the course of hearing of appeal and the