MARIA ARULAYI Vs. ANTHONIYAL

JUDGEMENT

(1.) Challenge in this second appeal is to the concurrent Judgments and decrees passed in Original Suit No. 667 of 1993 by the Principal District Munsif Court, Padmanabhapuram and in Appeal Suit No. 45 of 1998 by the Sub Court, Padmanabhapuram. The appellant herein as plaintiff has instituted Original Suit No. 667 of 1993 on the file of the trial Court praying to pass a preliminary decree of partition with regard to her 1/3 share over the suit property, wherein the present respondents have been shown as defendants.

(2.) In the plaint it is averred that the suit property is originally belonged to Savarimuthu and he passed away leaving behind him, his two daughters namely plaintiff and second defendant herein and only son, who has been arrayed as first defendant. Prior to thirty years, marriage of the plaintiff has been performed and now she is living just ten Kilometres away from suit Village. The first defendant is nothing, but a confirmed bachelor. After the demise of father, the first defendant has been enjoying the suit property for himself and on behalf of the plaintiff and second defendant. Since the first defendant has had acted against the interest of the plaintiff, the present suit has been instituted so as to work out the share of the plaintiff.

(3.) In the written statement filed on the side of the defendants 3 and 4, it is averred that as per existing law in Travancore State, the plaintiff has been given attractive things at the time of performing her marriage. Now the plaintiff has been living in Balapallam Village. After the demise of father, the first defendant, the only legal heir of father, has enjoyed the suit property. It is false to say that the first defendant has been enjoying the suit property for himself and on behalf of the plaintiff and second defendant. The first defendant has paid kist to the Government exclusively in his name and patta for the suit property has been granted in his name. The possession and enjoyment of the first defendant is open to the plaintiff and second defendant. The plaintiff and second defendant are not sharers of the suit property. The first defendant has executed various sale deeds and some of the alienees have not been impleaded. Since the first defendant has had ousted the plaintiff and second defendant from the enjoyment of the suit property and since the present suit has been instituted only in respect of the suit property without including other properties, the suit is liable to be dismissed on the ground of ouster and also on the ground of partial partition.