T. Ravindran, J.

S.A. No. 780 of 2014

Challenge in this second appeal is made by the plaintiff against the judgment and decree dated 10.10.2013 passed in A.S. No. 24 of 2012 on the file of the Sub Court, Dharmapuri, reversing the judgment and decree dated 29.10.2011 passed in O.S. No. 26 of 2009 on the file of the District Munsif Court, Dharmapuri.

S.A. No. 781 of 2014

Challenge in this second appeal is made by the plaintiff against the judgment and decree dated 10.10.2013 passed in A.S. No. 24 of 2012 on the file of the Sub Court, Dharmapuri, reversing the judgment and decree dated 29.10.2011 passed in O.S. No. 26 of 2009 on the file of the District Munsif Court, Dharmapuri.

2. The second appeals have been admitted and the following substantial questions of law are formulated for consideration in these second appeals:-

(i) Whether the alleged oral partition could be presumed on the basis of the revenue records only, especially when the patta is not a document of title?

(ii) Whether the court below was correct in holding that the burden of proving the alleged oral partition that took place between the appellant and his brother, the vendor of the respondents, was on the appellant who denies the same?

(iii) Whether the trial Court is empowered to decide the question of the alleged oral partition in a suit for declaration of the title especially when the suit property was jointly purchased by the appellant and his brother/the vendor of the respondent?"

3. O.S. No. 26 of 2009 has been laid by the appellant for declaration and permanent injunction.

4. O.S. No. 212 of 2009 has been laid by the respondent in S.A. No. 780 of 2014/ first respondent in S. No. 781 of 2014 for declaration and permanent injunction.

5. The appellant and Madaiyan, the first defendant in O.S. No. 26 of 2009 are brothers. It is found that the suit property had been jointly acquired by the appellant and Madaiyan under the sale deed dated 22.04.1971 marked as Ex.B1. Thus, according to the appellant, he and his brother Madaiyan are the joint owners of the suit property and the same is in their joint possession and enjoyment. It is the further case of the appellant that neither of them has ownership of any particular extent in the suit property. While so, according to the appellant, despite the public notice about the joint ownership of the suit property by the appellant and Madaiyan, it is stated that Madaiyan had alienated the entire suit property in favour of the respondent under a sale deed dated 22.11.2007 marked as Ex.A1 and basing upon the same, inasmuch as the respondent had attempted to interfere with the possession and enjoyment of the appellant in respect of the suit property, he has been necessitated to lay the suit in O.S. No. 26 of 2009 for appropriate reliefs.

6. Per contra, the respondent has taken a plea that the suit property had been allotted to the share of Madaiyan and accordingly, patta had been mutated in favour of Madaiyan and accordingly, he had been in exclusive possession and enjoyment of the suit property and further plea has been taken that the respondent he had purchased the suit property from Madaiyan and following the same, it is only the respondent, who is in possession and enjoyment of the suit property by obtaining the patta and paying kist and inasmuch as the appellant had attempted to interfere with his possession and enjoyment in respect of the suit property, he has been necessitated to lay the suit in O.S. No. 212 of 2009 for appropriate reliefs.

7. As seen from the evidence adduced in the matter, it is not in dispute that the suit property had come to be owned by the appellant and his brother Madaiyan under the sale deed dated 22.04.1971 marked as Ex.B1. Now, according to the appellant, the suit property remains joint and thus, it is contended that Madaiyan is not entitled to alienate the entire property in faovur of the respondent as the appellant is also entitled to share in the suit property. Per contra, the respondent has t