VASANTHA Vs. RANGANATHAN AND ANOTHER

JUDGEMENT

(1.) Being aggrieved by judgment of Lower Appellate Court in A.S. No. 85 of 2004 modifying judgment of Trial Court and holding that the plaintiff would be entitled to owelty in respect of 1/6th share in the site in 'B' schedule, plaintiff has filed this Second Appeal. First respondent/first defendant is the brother of appellant/plaintiff and second defendant/second respondent. Plaintiff and defendants are son and daughters of Govinda Naicker and Thangammal. Item No. 1 situate in Survey No. 372/2, is a land property measuring an extent of 1.46 Acre and Item No 2 situate in Survey No. 521/6, Door Nos. 53/54 is an house property measuring 660 sq. ft. Stating that both items of suit properties are the joint family properties of her father Govinda Naicker, plaintiff filed the Suit claiming partition of her 1/3rd share in both items of suit properties. According to appellant, both items were ancestral/joint family properties in which she is entitled to 1/3 share.

(2.) First defendant/first respondent resisted the Suit inter alia contending that the plaintiff and second defendant were provided with dowry and Seervarisai during marriage. It is averred that appellant is also working in the Noon Meals Scheme and also doing hotel business. According to first defendant, from out of his income as a teacher and by obtaining loan from Vijayapuram Cooperative Housing Society, he constructed tiled house in 2nd item of the suit property in 1982 itself and that the plaintiff also consented and gave no objection for the same. According to first defendant, the house was put up with the hard earned income of the first defendant and that the appellant with lot of dowry and Seervarisai and the suit properties are no longer available for partition. First defendant has also raised the plea of ouster stating that he is in possession and enjoyment of both items of suit property for over the statutory period and that he has perfected his title by adverse possession and the plaintiff is estopped from claiming any right in the suit properties.

(3.) On the above pleadings Trial Court has framed four issues. Plaintiff examined himself as PW1 and Exs. A1 to A5 were marked. First defendant was examined as DW1 and Exs. B1 to B6 were marked.