JUDGEMENT

This Appeal has been preferred challenging the judgment of the trial Judge dated 21.07.2017 made in OS.244/2012.

st nd

2. The appellant is the 1 defendant in the suit. The 2 defendant remained ex parte. the 1st respondent /plaintiff has filed a suit for partition rd and separate possession of her 1/3 share of the suit property. The suit was decreed as prayed and a preliminary decree was also passed. Aggrieved over nd that the appellant /2 defendant has preferred this Appeal.

3. The short facts of the case runs as under:

The plaintiff and the defendants are the children of one late Kolanda gounder. The plaintiff and the 2nd defendants are the daughters and the 1st defendant is the son of late Kolanda gounder; the suit item No.1 was purchased by Kolanda gounder by virtue of a sale deed dated 25.05.1972; the suit items 2 and 3 were purchased by one Muthu gounder by virtue of the sale deeds (Exs. A2 and Ex.A3) dated 30.07.1927 and 28.07.1926 respectively; the said Muthu gounder is none other than the paternal grand father of the parties in the suit; after the death of Muthu gonder and his wife, his only son Kolanda gounder has inherited the suit items 2 and 3; so the plaintiff’s father became entitled to all the three items of the suit properties and he was in the enjoyment of the same; Kolanda gounder died on 17.08.1981 leaving behind his wife and three children as his legal heirs; the wife of the Kolanda gounder also died subsequently and hence the plaintiff and the defendants are the only legal heirs of late Kolanda gounder now; as the class one legal heirs of the father Kolanda gounder the plaintiff and the defendants are entitled to equal share in all the suit properties; since the defendants are not amedable for partition, the plaintiff has filed the suit for partition.

4 .The brief facts of the written statement of the 1s t defendnat:

st The 1 defendant had filed his written statement by stating that though item No 1 was purchased in the name of his father he had given the money for purchase and hence the item No.1 should be treated as the self st acquired property of 1 defendant; the plaintiff has left the family after her marriage and she never enjoyed the suit properties jointly and hence it nd should be presumed that she was ousted from the suit properties. The 2 defendant did not contest the suit and remained ex parte.

5. On the basis of the above pleadings the learned trial Judge has framed the following issues:

“1) whether the suit properties are self-acuiried properties of Kolanda gounder?

2) Whether the plaintiff is in joint possession and enjoyment of the suit properties with the defendants?

3)Whether the 1st defendant had paid the consideration of Rs.7,000/-

on 25.05.1972 to purchase the item -1 of suit property in the name of Kolanda gounder?

4)Whether the 1st defendant had attempted to disturb/sell the suit properties on 0512.2012?

5)Whether the suit is bad for non-joinder of necessary parties?

6)Whether the plaintiff has right of 1/3rd share in the suit properties?

7)Whether the plaintiff is entitled the preliminary decree of partition of

1/3rd share in the suit properties?

8)Whether the plaintiff is entitled to the relief of permanent injunction against the defendants for her 1/3 rd share in the suit properties till the vacant possession is handed over to her?

9)To what relief?”

6. During course of the trial on the side of the plaintiff, one witness was examined as PW.1 and Ex.A1 to A8 were marked. On the side of the defendant, two witnesses were examined as DW.1 and DW2. and Exs.B1 to B5 and Exs. X1 to X6 were marked as Court side documents.

7. After conclusion of trial and on considering the available records, the learned trial Judge has chosen to decree the suit as prayed for.

st Aggrieved over that the 1 defendant has preferred this Appeal.

8. Heard the learned counsel for the appellant and the learned counsel for the respondent and also perused the materials are available on record.

9. Mr.N.Manokaran, learned counse