S SUNDARAMBAL Vs. K INDIRA (DIED)

JUDGEMENT

(1.) This Civil Miscellaneous Appeal has been filed against the judgment and decree of the lower appellate Court dated 02.03.2012 made in A.S.No.5 of 2010 on the file of Additional District Judge, Fast Track Court No.2, Madurai, remanding the suit in O.S.No.677 of 2000 on the file of the Principal Subordinate Judge, Madurai.

(2.) The above suit has been filed by the appellant/plaintiff before the Sub Court, Madurai, seeking for partition and separate possession. According to the appellant, her mother, brothers and the purchasers of the suit properties were impleaded as parties. In respect of suit items 1,3, 4 and 5, the respondents claimed right based on the alleged will dated 08.11975. Regarding item 2, the respondents claimed right stating that the same was in their separate possession and so far as items 6 to 8 are concerned, based on a deed of settlement executed by one Kanniammal who is aunt of the appellant's father, the respondents claimed right. On the basis of the above pleadings, the respondents sought for dismissal of the suit.

(3.) .Before the Trial Court, the appellant was examined as PW1 and her husband was examined as PW2. A handwriting expert was examined as PW Exs.A1 to A16 were marked on the side of the appellant. The 2nd defendant in the suit was examined as DW1 and Exs.B1 to B17 were marked. Though the respondents claimed right under a will, since they did not take any steps to prove the same, on the application filed by the appellant, original will was called for from the bank and the same was produced before the court and signatures of the appellant's father in the will and the admitted signatures of the appellant's father were compared and the experts had given the opinion that the signatures did not tally. Though the ownership of the appellant's father in respect of suit items 1, 3, 4 and 5 was admitted by the respondents, the Trial Court erroneously dismissed the suit on perverse findings namely, ouster and adverse possession when the same was not pleaded and proved by the respondents.