Joint ownership presumes possession by all co-owners and requires clear evidence of ouster for a claim of adverse possession; partition claims are valid within statutory limits.

JUDGMENT

This Second Appeal is filed against the judgment and decree, dated 03.07.2014, made in A.S.No.24 of 2012 on the file of the learned Subordinate Judge, Theni, confirming the judgment and decree, dated 29.02.2012, made in O.S.No.138 of 2008 on the file of the District Munsif Court, Theni.

2. The appellants are defendants 1 to 3 in O.S.No.138 of 2008 on the file of the District Munsif Court, Theni. The first respondent is the second plaintiff and the respondents 2 to 5 are the defendants 4 to 7 in that suit.

3. The 1^st respondent/2^nd plaintiff and the deceased first plaintiff filed the suit against the respondents/defendants for partition of ½ share in the suit property.

4. For the sake of convenience, the parties are referred to as the plaintiff and defendants in O.S.No.138 of 2008 on the file of the District Munsif Court, Theni.

5. Case of the plaintiff:

The suit property and other properties were joint family properties of one Arunachalam Pillai and Palaniyandi Pillai. Arunachalam Pillai’s wife was Thangammal. Palaniyandi Pillai’s wife was Meenakshi Ammal. Palaniyandi Pillai had two sons namely Muthugopal and Veerachamy. There was a partition of joint family properties on 26.06.1951. As per that partition 'A' schedule therein was allotted to the said Thangammal and Meenakshi Ammal without powers of alienation and after their lifetime, Muthugopal and Veerachamy would take the properties in equal moieties. As per that partition, dated 26.06.1951, the 'B' Schedule therein was allotted to Muthugopal, and the 'C' Schedule therein was allotted to Veerachamy. The 'A' Schedule properties are the suit properties herein. Thangammal and Meenakshi Ammal died. The first plaintiff is the wife and the second plaintiff is the daughter of Muthugopal Pillai. The first defendant is the wife and the other defendants are sons and daughters of Veerachamy Pillai. The plaintiffs are entitled to half share in the suit properties and demanded for partition. Since the defendants do not come forward for partition, the plaintiffs have filed the present suit.

6. Case of the Defendants 1 to 3

The relationship and the partition, dated 26.06.1951 are admitted. It is also admitted that the suit properties, which are shown as 'A' schedule in the partition, dated 26.06.1951, were allotted to Thangammal and Meenakshiammal. Meenakshiammal was not in possession of the suit properties by survivorship. After 5 years of the aforesaid partition, Muthugopal Pillai died, so the plaintiffs are not entitled to demand any partition. Veerachamy Pillai was the absolute owner of the entire suit properties, since Muthugopal Pillai died before passing of the Hindu Succession Act, 1956. The plaintiffs never in joint possession of the suit properties. The plaintiffs are out of possession from the death of Muthugopal Pillai. The defendants are in open, hostile possession of the suit properties with the knowledge of the plaintiffs. Their title had been perfected by adverse possession and doctrine of ouster. The claim of partition by the plaintiffs after 47 years is not sustainable in law. So, the plaintiffs are not entitled to any share in the suit properties.

7. The defendants 4 to 7 remained ex-parte in the suit before the trial Court.

8. During trial, on the plaintiffs' side, the second plaintiff was examined as P.W.1 and Ex.A.1 to Ex.A.7 were marked. On the defendants' side, the defendants 2 and 3 were examined as D.W.1 & D.W.2 and Ex.B.1 to Ex.B.3 were marked.

9. The trial Court/District Munsif Court, Theni framed the following Issues and Additional Issues:

(1) Whether the plaintiffs are entitled to the relief of partition as prayed for?

(2) To what relief the plaintiffs entitled to?

Additional Issues:

(1) Whether the defendants are entitl