The court emphasized the importance of evidence in proving oral partition and rejected the defendants' claims based on lack of evidence. The court also clarified that the suit property cannot be considered as a suit of partial partition.

JUDGMENT

(Prayer: First Appeal filed under Section 96 of Civil Procedure Code to set aside the judgment and decree dated 08.03.2011 in O.S.No.169 of 2009 on the file of Additional District Judge (Fast Track Court No.1), Salem.)

1. The defendants in the Suit aggrieved by the judgment and decree of the learned Additional District Judge, Fast Track Court-I, Salem dated 08.03.2011 in O.S.No.169 of 2009 have filed the present Appeal Suit. The Suit filed by the respondent plaintiff for partition of the suit properties and allotment of 1/3rd share and for separate possession was partly decreed by the Trial Court. In this judgment, the parties are referred to in the same ranking as before the Trial Court.

2. The case of the plaintiff is that the plaintiff is the daughter of one Perumal Reddy and Poppammal; the first and the second defendants are her brothers. The suit properties belong to their father Perumal Reddy and their mother Poppammal. Some of the properties came to her mother by way of release deed dated 26.10.1970 and some of the properties were purchased through two sale deeds dated 09.10.1970 and 20.08.1981 respectively. The said Perumal Reddy died in the year 2000 and Poppammal died on 21.06.2008 intestate leaving behind the plaintiff and the defendants as their legal heirs. Thereafter, misunderstanding arose between the plaintiff and the defendants. The plaintiff is living in her husband's place and therefore she demanded the defendants to divide the suit property into 3 equal shares, however the defendants did not accept. The plaintiff issued notice dated 08.07.2009 and thereafter filed the suit for partition in O.S.No.169 of 2009.

3. The suit was resisted by the defendants by filing a written statement. It is their case that as far as one of the items in the suit schedule property namely Survey No.223/1A is concerned, the same is not an exclusive property of the plaintiff's father but the property was purchased along with one Reggi Reddy. In the absence of Reggi Reddy as one of the party in the suit, partition cannot be prayed for in the Survey No.223/1A. It is therefore the further case that in respect of another survey number namely S.No.221/1, a part of the same was also purchased by the first defendant and therefore that is also wrongly included in the suit schedule property.

4. As far as the other properties are concerned, it is the case of the defendants that even during the lifetime of their father by way of oral partition, their father had divided the entire suit property into two between both the brothers i.e., defendants 1 and 2 herein. Pursuant to the oral partition, they are in separate possession and enjoyment of the same and paying the kist. It is the further case of the defendants that there is one more property in Survey No.223/3 which is not included in the suit schedule property. This apart, there are also two wells and a 5 HP motor and a 3 HP motor in Survey No.223/1A and one tiled house and one thatched house in Survey Nos.300/2K and 300/2M respectively, which are left in the suit schedule property and therefore since the suit schedule is incomplete, the suit for partial partition to be dismissed.

5. On the said pleadings of the parties, the Trial Court framed the following issues:

i) Whether the plaintiff is entitled for partition and separate possession of 1/3rd shares in the suit properties?

ii) Whether the father of the plaintiff and defendants orally divided the suit properties after the marriage of the plaintiff in favour of the defendants?

iii) Whether the defendants have spent 50 lakhs of rupees for levelling the suit properties and put up the houses separately?

iv) Whether the value of the suit properties is not correct? v) Whether the description of properties is not correct?

vi) Whether the defendants are in possession and enjoyment of the suit property as per oral partition?

vii) To what relief, the plaintiff is entitled?

6. On the said issues, the plaintiff examined herself as