The court reinforced that a co-owner alleging ouster must provide clear, open, and hostile evidence of possession against other co-owners.

JUDGEMENT

The present Second Appeal arises out of judgment and decree of the court of Addl. District Judge, Dharpuram in A.S.No. 41 of 2011 dated 03.06.2013 in reversing the judgment and decree of the court of Subordinate Judge, Dharapuram dated 11.04.2011.

2. For the sake of convenience, the parties are referred as per the ranking in the suit.

3. O.S.No. 181 of 2010 on the file of the Subordinate Judge, Dharapuram is the suit for partition.

4. The case of the plaintiff Mohan, is that he had purchased the property from the legal heirs of one Ramaiya Gounder, who was in joint possession and enjoyment of suit schedule mentioned property along with his brother Muthu Gounder. As there was no division in status between the parties and since he had purchased the property to an extent of 3.13 acres by way of a registered sale deed dated 29.03.2007 and since his demand for partition remained unsatisfied, he filed a suit to enforce partition of properties.

5. The genealogical tree for the purpose of disposal of this case is as follows:-

GENEALOGICAL TREE Nachimuthu Gounder ______________ _|_______________

| |

Ramaiya Gounder Muthu Gounder __________ _____|_ ___________ |

| | | | | |

Muthusamy Nachimuthu Palanisamy Muthusamy Nachimuthu Ramasamy | | | | | D7 |

Nachimuthu Nachimuthu Nachimuthu Nachimuthu* Muthammal Duraisamy D15 to D18 Ramasamy D39 & D40 Chinnammal D10 D12 Murugasamy D8 Mani D13 Palanisamy D19 Palanisamy Muthusamy | Somu D9 Kalavathi D14 D20 & D 21 Chinnammal D41 D35 & D36 Govindasamy D22 D37 Sarswathi D2 (husband) *(wife) Saraswathi (D1)

D23 to D25 D38 Chinnammal |

Velusamy D26 D3 to D6 (LRs)

D27 to 29 Ramasamy D30 D31 to 33 Palaniammal D34

6. The defendants entered appearance and 13th defendant filed a detailed written statement. According to him, the joint purchase of suit schedule property by two brothers Ramaiya Gounder and Muthu Gounder is true. It was also admitted that Ramaiya Gounder and Muthu Gounder divided the properties other than the suit schedule mentioned property by way of a registered partition deed dated 26.07.1926. They further pleaded that though the suit property was not divided under the said document, it fell to the share of the younger brother Muthu Gounder and was enjoyed by him exclusively.

7. According to the defendants, on 11.09.1947 Muthu Gounder and his three sons partitioned the property among themselves. On 10.04.1949 Ramaiya gounder and his three sons namely Muthusamy gounder, Nachimuthu gounder and Palanisamy gounder entered into a registered partition in respect of their joint family properties. Further, on 28.08.1958 another registered partition took place between Muthusamy gounder and Palanisamy gounder, the eldest and youngest son of Ramaiya gounder in respect of their family properties. In none of the partition deeds dated 10.04.1949 and 28.08.1958 the suit property was included as it was not enjoyed either by Ramaiya gounder or his sons. The suit property has always been in the exclusive possession and enjoyment of the legal heirs of late Muthu gounder.

8. Pending the suit, an application was taken out to file additional written statement, which was allowed and in the additional written statement, the plea of ouster was taken by the defendants.

9. On the basis of these pleadings, the court framed the following issues :-

“1) Whether the particulars as to the legal heirs of deceased Muthu gounder as stated in the plaint are correct?

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

3) Whether the suit property already fell to the share of Muthu Gounder and became exclusive property of LR's of Muthu Gounder?

4) Whether the plaintiff is not entitled to claim any share in the suit property on the principle of estoppel and also ouster?

5) Whether the description of the suit property is correct?

6) Whether the plaintiff is entitled to the relief of partition and separate possession as prayed for?

7) To what relief the plaintiff is entitled to?

10. Originally, the Suit had been numbered before the D