The burden of proof for oral partition lies with the claiming party, and reliance on revenue records alone is insufficient to prove partition.

M. SATHYANARAYANAN, J.

1. The plaintiff in O.S. No. 5 of 2009 on the file of the Court of Subordinate Judge, Dharmapuri, which was filed for partition, separate possession, permanent injunction and other consequential reliefs, had succeeded before the Trial Court and in the appeal preferred by the defendants 1 and 3 in A.S. No. 2 of 2013 on the file of the Principal District Judge, Dharmapuri, she lost it and hence, filed this Second Appeal, challenging the impugned judgment and decree dated 28.10.2014 made in A.S. No. 2 of 2013 passed by the Lower Appellate Court.

2. Facts leading to the filing of this Second Appeal, briefly narrated, are as follow:

2.1. The plaintiff would aver that the Suit schedule Item Nos. 1 and 2 properties belong to the plaintiff and the defendants. The plaintiff, defendants 2 and 3 and the deceased Meenakshi are the daughters and sons of one Manickam. The first defendant, namely Saroja is the wife of Manickam and one of the sisters of the plaintiff, namely Meenakshi died on 04.06.1980, leaving behind the defendants 4 to 6 as her legal heirs. The plaintiff would further aver that her father died on 19.08.2002 and since the Suit Schedule Properties are joint family properties and that no partition took place among them and that the properties originally belong to grandfather of the plaintiff, namely Maadhusamy, she is entitled to claim partition.

2.2. It is also averred by the plaintiff that Manickam, father of the plaintiff and his brother had partitioned the property and the Suit Schedule mentioned property were allotted to the share of her father and though requests were made by the plaintiff to the defendants for partition and to give separate possession of the same, the defendants 2 and 3 were adopting dilatory tactics. It is also the case of the plaintiff that by virtue of the Hindu Succession Act, Central Amendment 2005, she is entitled to make the claim for partition and would further aver that the defendants 2 and 3 are taking steps to alienate the property and therefore, prayed for partition of the Suit Schedule mentioned property into 75 equal shares and allot 1/8th share to her and also for permanent injunction restraining the defendants 1 to 3 from alienating or encumbering the Suit Schedule property.

2.3. The second defendant remained absent and set ex-parte by the trial Court. The defendants 1 and 3 had filed a written statement reputing the averments made in the plaint and admitted that the properties are ancestral in nature and however, contended that the plaintiff and her sister, namely Meenakshi (since deceased) were given marriage about 35 years back with Sridhana and other articles and would further contend that the defendants 2 and 3, immediately after the demise of their father Manickam, had orally partitioned the properties about 25 years back and revenue records also stand in their name and also took a stand that there is no cause of action to prosecute the Suit and prayed for dismissal of the Suit.

2.4. The Trial Court, on consideration of the pleadings, framed the following issues:

1. Whether the oral partition between D2 and D3 some 25 years back with regard to the suit properties as alleged in the statement is true and valid?

2. Whether the plaintiff is entitled to 18/25th share in the suit properties as alleged in the plaint?

3. Whether the plaintiff is entitled to preliminary decree for partition as prayed for?

4. Whether the plaintiff is entitled for permanent injunction as prayed for?

5. To what relief?

During the course of trial, the plaintiff examined herself as PW-1 and examined two other witnesses and marked Exs.A1 to A9. The first defendant examined herself as DW1 and the third defendant examined himself as DW-2 and one of the Panchayatdhar of the oral partition was examined as DW-3 and Exs.B1 to B10 were marked.

2.5. The Trial Court, on consideration of the pleadings and on appreciation of oral and documentary evidence, had found that ancestral nature of the property