The burden of proof of unequal partition lies with the party claiming it, and in the absence of proof, the natural presumption is that co-owners inherited the properties equally.

1. The unsuccessful Plaintiff is the Appellant.

2. The Plaintiff filed the suit for declaration and injunction in respect of the `A’ scheduled property and claimed the right of easement over the `B’ schedule property.

3. The case of the Plaintiff was that originally the properties were owned by one Thoppai and after his death, his three sons Nadupayyan, Oomaiyan and Velli equally divided the properties among themselves and under the said division, Nadupayyan got the property on the Southernmost side and Oomaiyan got the property in “the middle and Velli got the property on the Northernmost side. The said Oomaiyan got 1.55 acres in the middle and he sold Southern 1 acre to the Defendants and the remaining 55 cents to the Plaintiff under document dated 09.11.1979. The other co-owner Velli also sold his share 1.55 acres situate on the Northern extreme to the Plaintiff under the Sale Deed dated 09.01.1979 and the Plaintiff got title in respect of 2.10 acre and therefore, filed Suit for declaration and injunction.

4. The Defendants contested the Suit stating that the properties were owned by one Thoppai and after his death, his sons partitioned the properties and Nadupayyan, who undertook to discharge the loans, was given 2.65 acres on the Southern side and immediately North of the 2.65 acres, 1 acre was allotted to Oomaiyan and North of that property remaining 1 acre was allotted to the share of Velli and Nadupayyan became the owner of 2.65 acres and thereafter, the Defendant’s father purchased 2.65 acres from Nadupayyan and from Oomaiyan, his share of property viz., 1 acre was purchased by the Second Defendant under Sale Deed dated 07.11.1979 and even in the Sale Deed dated 07.11.1979 executed by Oomaiyan, it has been clearly mentioned that the Northern boundary is the property belonging to Velli and therefore, it has been admitted by Oomaiyan that he got only 1 acre and therefore, the Plaintiff cannot claim title to 2.10 acres and the Plaintiff can only claim title in respect of 1 acre.

5. Both the Court below accepted the case of the Defendants and dismissed the Suit holding that after the death of the father, the Defendants’ Vendors viz., Nadupayyan got 2.65 acres on the Southernmost share and North of that property, the 1 acre was allotted to Oomaiyan and further. North to that, property, the remaining 1 acre was allotted to Velli and that was also proved by Ex.B.3 and hence, the Plaintiff is not entitled to the relief prayed for and the Plaintiff did not prove his possession. Aggrieved by the same, this Second Appeal is filed.

6. At the time of admission, the following substantial questions of law were framed:

1. Whether the Courts below have not erred in accepting the plea of Defendant as regards unequal partition in the absence of proof and evidence?

2. Whether the Courts below have failed to appreciate the evidence of DW1 when he had expressed his ignorance in respect of the document under Ex.B1 and Ex.B2?

3. Whether the Courts below ought not to have held that the partition among the co-owners is presumed to be equal unless evidence to the contrary is proved and established and in the present, case when the Defendant had failed to prove that Nadupaiyyan had been allotted excess share, whether the Courts below ought not to have rejected the case of the Defendant and decreed the Suit of the Plaintiff as prayed for?

4. Whether the order of the Court is not opposed to the general and elementary principles that the Division among co-owners is equal?

5. Whether the Courts below ought to have declared the rights of the Plaintiff particularly in view of the admission made by the Defendant?

6. Whether the order of the Court below is not against Section 47 of the Transfer of Property Act?

7. Whether the Courts below ought not to have held that the Plaintiff is entitled to a declaration in respect of B schedule property, particularly when the same had been granted to them under the document in Ex.A.1 and Ex.A.2?

7. Though