Ouster among co-sharers requires hostile animus, long exclusive possession known to other co-owner; mere possession insufficient.

JUDGMENT :

A.D. MARIA CLETE, J.

1.This Appeal Suit is filed by plaintiff challenging the Judgment and Decree dated 01.09.2018 passed in O.S. No.247 of 2013 on the file of the III Additional District - cum- Sessions Court, Erode at Gobichettipalayam.

2. For the sake of convenience, the parties are referred to in this judgment in the same rank as they were arrayed before the Trial Court

3. The plaintiff’s case, in brief, is that the suit properties are the ‘B’ Schedule properties which fell to the share of Chinnappagounder, the plaintiff’s maternal grandfather, under a family Partition Deed dated 10.07.1956. According to the plaintiff, after the death of Chinnappagounder intestate in 1963, his daughter Kuppayee, who was the plaintiff’s mother, and his son Subramaniam jointly enjoyed the suit properties. On the death of Kuppayee in 1977, the plaintiff claims to have succeeded to her interest as her sole legal heir, and on the death of Subramaniam in 2003, the 1st defendant, being his wife , succeeded to his interest. The plaintiff further states that he and the 1st defendant thereafter continued in joint possession and enjoyment of the suit properties without partition. It is his further case that, when he demanded partition on 20.07.2013, the 1st defendant refused, and on verification he came to know that portions of the suit properties had been alienated in favour of defendants 2 to 4, which, according to him, are not binding on his share, since he was not a party to those sale deeds. Claiming 1/4th share in the suit properties, the plaintiff has filed the suit for partition and separate possession of his share, permanent injunction, and costs.

4. The 1st defendant resisted the suit contending that, though the relationship between the parties and the fact that Chinnappagounder was the common ancestor are true, the plaintiff has no subsisting right in the suit properties. According to the 1st defendant, after the death of Chinnappagounder in 1963, his son Subramanian alone was in exclusive possession and enjoyment of the family properties, and neither Kuppayee, the plaintiff’s mother, nor the plaintiff ever asserted any right over them. It is her specific case that, after the death of Subramanian, she alone continued in exclusive possession and enjoyment of the suit properties, openly and to the knowledge of the plaintiff, and therefore she has perfected title by ouster and adverse possession. The 1st defendant denied the plaintiff’s plea of joint possession, denied the alleged demand for partition on 20.07.2013, and contended that the alienations in favour of defendants 2 to 4 were valid and were made with the knowledge of the plaintiff. She further pleaded that the suit is bad for partial partition and non-joinder of necessary parties, that the property description is incorrect, that the suit is barred by limitation, that without seeking to set aside the sale deeds the suit is not maintainable, and that the plaintiff, being out of possession, has not properly valued the suit or paid proper court fee. On the above pleadings, the 1st defendant sought dismissal of the suit with costs.

5. The 2nd and 4th defendants, who were the purchasers, resisted the suit contending that the plaintiff has no subsisting right in the suit properties. The 2nd defendant claimed that he is a bona fide purchaser for valuable consideration under the sale deed dated 25.01.2011 executed by the 1st defendant, that his vendor had valid title as the legal heir