The need for the party pleading oral partition to prove it and the significance of the absence of pleading about the oral partition in the plaint.

This second appeal is focussed by the unsuccessful plaintiffs animadverting upon the judgment and decree dated 24.02.2005 passed by the learned Additional District and Sessions Judge cum Fast Track Court, Kallakurichi in A.S.No.64 of 2004 in confirming the judgment and decree dated 21.08.2001 passed by the learned II Additional District Munsif, Kallakurichi in O.S.No.627 of 1997.

2. The parties, for convenience sake, are referred to here under according to their litigative status before the trial Court.

3. Heard both sides.

4. Niggard and bereft of unnecessary details, the germane facts absolutely necessary for the disposal of this second appeal would run thus:

a] The appellants/plaintiffs, filed the suit seeking the following reliefs: To pass a judgment and decree

(i) for partition and separate possession of the plaintiffs' half share in the suit A schedule properties, after redemption of the mortgage dated 28.10.1978;

(ii) for a provision for ascertainment of future mesne profits payable by the defendant to the plaintiffs in respect of their half share in the suit A schedule properties;

(iii) for partition and separate possession of the plaintiffs' half share in the suit B schedule properties;

(iv) for a provision for ascertainment of future mesne profits payable by the defendant to the plaintiffs in respect of the plaintiffs' half share in the suit B schedule properties and for costs.

(extracted as such)

b] The defendant resisted the suit by filing the written statement.

c] The trial court framed the relevant issues.

d] During trial, on the plaintiffs' side P.Ws.1 to 3 were examined and Exs.A1 to A8 were marked. On the defendant's sides D.Ws.1 and 2 were examined and Exs.B1 to B34 were marked.

e) Ultimately, the trial court dismissed the suit; as against which, the appeal was preferred by the plaintiffs for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court.

f) Being aggrieved by and dissatisfied with the judgments and decrees of both the courts below, the plaintiffs have preferred this second appeal suggesting various substantial questions of law.

5. My learned predecessor framed the following substantial questions of law:

1. Whether the respondent was estopped from contending that the appellants and Ramalinga Kachirayar were each entitled to half share in A schedule properties for the reason that RW2 Ramalinga Kachirayar himself admitted that the oral partition the entire A schedule properties were allotted to the appellants and that the appellants and RW2 were entitled to half share in the B schedule properties?

2. Whether once a mortgage always a mortgage the principle applies to the facts of the case and that the appellants are entitled to right of redemption on statutory discharge of Othi mortgage in favour of the respondent herein?

3. Whether the court below committed error in not appreciating the legal effect of usufructory mortgage vis-a-vis the Tamil Nadu Debt Recovery Act viz., Act 40 of 1979 and whether the non-framing of vital issue regarding Othi and discharge of Othi in the light of the provisions contained in Act 40 of 1979 would seriously affect the merits of the case?

4. Whether the appellate court was legally justified in non-suiting the plaintiffs on the footing that the respondent was in possession for a period of 12 years, though such possession was under Othi?

(extracted as such)

6. After hearing both sides, to the knowledge of them, I reframed the substantial questions of law as under:

1. Whether the plaintiffs' pleaded and proved oral partition, which allegedly emerged between the plaintiffs' who happened to be the descendants of Gopal Kachirayar, and PW2 Ramalinga Kachirayar and if so, whether in the oral partition the suit properties were allotted to the share of the plaintiffs and if so, after allegedly selling their half share only in items 1 and 2 of the A scheduled properties in the plaint, whether the remaining half s