The burden of proving oral partition lies on the party asserting it, and adverse possession by one co-owner against others requires ouster or exclusion. Proper pleading and proof of oral partition are essential.

1. The Appellants/Plaintiffs have focussed this Second Appeal adverting upon the Judgment and Decree of the Learned Principal District Judge, Nagapattinam in A.S.No.189 of 2000 dated 22.06.2001 in confirming the Judgment and Decree dated 07.11.2000 in O.S.No.163 of 1998 passed by the Learned Principal Subordinate Judge, Nagapattinam.

2. The First Appellate Court, while delivering the Judgment in A.S.No.189 of 2000 (filed by the Appellants/Plaintiffs) and in A.S.No.53 of 2001 [filed by the Defendants 2 and 3) on 22.06.2001, has, inter alia, observed that an oral partition has taken place during the year 1968 between Marimuthu and D.W.1 which has been accepted and acted upon and as such, the Appellants are barred from demanding partition after Ex.B.2-Mortgage Deed dated 28.02.1985 and also that the 1st Respondent [1st Defendant] has prescribed title by adverse possession to the western portion of the suit property and as such, the Appellants are not entitled to any relief much less the relief of partition and resultantly, dismissed the Appeal A.S.No.186 of 2000 without costs and further opined that in view of the fact that since D.W.1 has prescribed title by adverse possession by co-owner, the lower Court decree and judgment is correct and consequently, dismissed the Appeal A.S.No.53 of 2001 without costs.

3. Earlier, before the trial Court in the main suit, 1 to 3 issues have been framed for determination. On behalf of the Appellants/ Plaintiffs, witnesses P.W.1 to P.W.4 have been examined and Exs.A.1 to A.11 have been marked. On behalf of the Defendants, witnesses D.W.1 to D.W.3 have been examined and Exs.B.1 to B.25 have been marked.

4. The trial Court, on an appreciation of entire oral and documentary evidence on record, has come to a categorical conclusion that the sons of Sabapathi Chettiar have orally partitioned the properties which fact has been known to all and each one of the parties have been in enjoyment of the properties well over the statutory period and also that the 1st Defendant has developed the property and has enjoyed the same and in the property being enjoyed by the 1st Defendant for well over statutory period the Appellants/ Plaintiffs and Defendants 2 and 3 [Appellants in A.S.No.53 of 2001 before the First Appellate Court] are not entitled to claim the relief of partition and dismissed the suit without costs.

5. The Appellants/Plaintiffs, being aggrieved against the Judgment and Decree of the First Appellate Court in A.S.No.189 of 2000 dated 22.06.2001, have filed the present Second Appeal before this Court.

6. The Defendants 2 and 3, who figured as Appellants in A.S.No.53 of 2001 have chosen to file Cross Objection No.9 of 2012 before this Court as against the Judgment and Decree dated 22.06.2001 in A.S.No.189 of 2000 passed by the First Appellate Court.

7. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law:

1. Was the finding of Lower Appellate Court that the 1st Defendant had purchased title to suit property by ouster and adverse possession sustainable in the peculiar circumstances of the case when the three daughters are not parties to the suit and one of the daughter of deceased was not heard of?

2. Was it correct for the Lower Appellate Court to hold that there was partition of suit properties made in 1968 when the partition was not proved?

The Contentions, Discussions, Findings on Point Nos.1 and 2:

8. According to the Learned Counsel for the Appellants/Plaintiffs, the deceased Sabapathi had 6 children viz., two sons and four daughters in all and each one of them is entitled to get a share of 1/6 in respect of suit properties and that Meenambal one of the daughters of deceased Sabapathi was not either included or shown as one of the parties to the partition reported to have taken place in the year 1990 and that in the Plaint, the Appellants/Plaintiffs have prayed for allotment of 4/5th shares in the suit properties a