Verbal claim of partition amongst family members not sustainable.

The plaintiff in the suit is the appellant herein. Aggrieved by the judgment and decree dated 22.02.1996 passed in A.S.No.17 of 1996 on the file of the Sub Court, Hosur in reversing the judgment and decree of the Court of the District Munsif, Hosur in O.S.No.189 of 1983 dated 111. 1992, the plaintiff has preferred this appeal.

2. The case of the plaintiff, Gopaliappa, as put forth before the Trial Court is as follows:

i. The plaintiff is in possession and enjoyment of the suit property by way of a registered Sale Deed dated 22.04.1968 executed by the first defendant. Prior to the purchase of the suit schedule property by the plaintiff, it was in the possession of the first defendant by way of an oral partition among the defendants in the year 1965; Till the execution of the Sale Deed in favour of the plaintiff, the first defendant was in possession of the suit schedule property. The second defendant is in possession of the remaining two acres of land in the same Survey Number and defendants 3 and 4 also possess their share of land in the neighbouring Survey Numbers. In the Sale Deed executed by the first defendant, the second defendant signed as a witness.

ii. While the first defendant had left Kanimangalam Village before several years and is working in Karnataka, the defendants 2 to 4 also had left Kanimangalam Village before five years and are residing in Pagalur. The defendants do not have any right in the suit schedule property and it is the plaintiff who is in possession and enjoyment of the same. Since he refused to re-sell the property, the defendants developed animosity with him.

He was supervising the lands of one Ammakka. Due to the animosity with the plaintiff, the defendants objected to the possession of the suit property by the plaintiff in view of the Revenue Records and tried to trespass into the property. Hence, the plaintiff filed a suit in O.S.No.189 of 1983 claiming declaration of title and permanent injunction.

3. The case of the defendants 2 to 4 as stated in the written statement is as follows:

i. The plaintiff is not in possession and enjoyment of the suit schedule property. The lands in question were not partitioned in the year 1965 and the suit schedule property was not allotted to the first defendant out of the said lands and the remaining portion of the lands also were not allotted to other defendants. The defendants 2 to 4 are entitled to their due shares in the suit schedule property and the plaintiff has not paid tax in respect of the said property. The second defendant has not signed as a witness in the sale Deed.

ii. They are illiterates and there had been no partition among themselves; they are in joint possession and enjoyment of the family properties. Since the plaintiff is their relative, he has fraudulently obtained the first defendants thumb impression in the Sale Deed. As per the Sale Deed dated 22.04.1968, the possession of the suit schedule property was not given to the plaintiff and only the defendants are in possession of the suit schedule property.

iii. The first defendant has not executed any Sale Deed in favour of the plaintiff and the defendants are paying tax in respect of the property in question and they are in possession of the same; even the patta stands in their favour and not in favour of the plaintiff and as such, there is no necessity for them to trespass into the property in question.

4. The Trial Court, on consideration of the facts and circumstances of the case, has held that the Sale Deed dated 22.04.1968 executed by the plaintiff is true and holding so, decreed the suit in favour of the plaintiff. Aggrieved by the judgment of the Trial Court, the defendants 2 to 4 went on appeal before the Lower Appellate Court in A.S.No.17 of 1996.

5. The Lower Appellate Court, on evaluation of the oral and documentary evidence available on record, raised the following questions for consideration:

i. Whether the averment of the plaintiff that there was an oral partition i