Proper pleading and proof of oral partition, along with the need for documentary evidence and a formal process for partition to establish the claim.

JUDGMENT

(Prayer: Second Appeal filed Under Section 100 r/w Order 42, Rule 1 of C.P.C., as against the decree and judgment dated 27.08.2014 made in A.S.No.15 of 2013 on the file of Subordinate Court, Chidambaram, reversing the judgment and decree dated 28.09.2012 made in O.S.No.41 of 2006 on the file of District Munsif Court at Kattumannarkoil.)

1. The plaintiff is the appellant in this second appeal.

2. The case of the plaintiff is that the suit property was a part of a larger extent of property measuring about 6 cents. The further case of the plaintiff is that there was a oral partition between him and the defendant who is his brother in the year 1990 and the plaintiff constructed a house in the year 1995 under the Group House Scheme of the Government. It is stated that the defendant was staying abroad and he came back in the year 2004. He also got married on 09.04.2004. The plaintiff further states that the defendant requested the plaintiff to permit him to stay in the construction put up by the plaintiff for a period of three months till he constructs his house in the vacant land that was allotted in his favour in the oral partition. The plaintiff allowed the defendant to reside in his property. Thereafter, the defendant refused to vacate the property. Hence, a legal notice was issued on 21.02.2005, marked as Ex.A1 calling upon the defendant to vacate and handover possession of the property. Even after the receipt of the notice, the defendant did not vacate the property and he in turn gave a reply notice on 21.01.2006, marked as Ex.A3. Aggrieved by the same, the plaintiff filed the suit seeking for the relief of recovery of possession.

3. The defendant filed a written statement and took a stand that the suit property formed part of the ancestral family properties of his father Kumarasamy, Plaintiff, defendant and his other brother Arjunan. On the demise of Kumarasamy, each brother became entitled to a share and they were the joint owners of the property. The defendant took a further stand that by mutual agreement and for convenience purposes, the plaintiff agreed to reside in the front portion and the defendant agreed to reside on the northern portion. The defendant had also constructed walls with Mangalore tiled roofing and also constructed bath rooms on the northern corner and he is living along with his family. Similarly, the other brother Arjunan was residing on the eastern portion by putting up a hut. Thus, the defendant took a stand that the property was enjoyed by the joint owners more by way of mutual agreement and there was no partition by metes and bounds as claimed by the plaintiff. The defendant therefore sought for the dismissal of the suit.

4. The Trial Court on appreciation of the oral and documentary evidence and on considering the facts and circumstances of the case, decreed the suit and directed the defendant to vacate and handover possession of the suit property within three months. Aggrieved by the same, the defendant filed an appeal before the Sub Court, Chidambaram in A.S.No.15 of 2013. The learned Appellate Judge on re-appreciation of the oral and documentary evidence and after considering the findings of the Trial Court, allowed the appeal by a judgment and decree dated 27.08.2014 and thereby, the judgment and decree of the Trial Court was setaside. Aggrieved by the same, the plaintiff has filed this Second Appeal.

5. This Court while admitting the second appeal framed the following Substantial questions of law:-

(a) Whether the Lower Appellate Court went wrong in not assigning cogent reasons while reversing the judgment of the Trial Court, as mandated under Order XLI Rule 31 (c) of the Code of Civil Procedure?

(b) Whether the Lower Appellate Court was right in completely disregarding the evidence of P.W.2 and also the additional evidence that was taken on file at the time of final hearing of the Appeal?

(c) Where the plaintiff bases his claim on an oral partition and the defendant pleads a mutua