A party pleading oral partition must establish it with convincing evidence, and inconsistent statements and lack of proof can lead to the rejection of the partition claim.

JUDGMENT

(Prayer:Appeal Suit filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree, dated 24.09.2014 made in O.S.No.11 of 2011, on the file of the Additional District Judge, Pudukkottai.)

1. The Appeal Suit is directed against the judgment and decree passed in O.S.No.11 of 2011, dated 24.09, on the file of the Additional District Court, Pudukkottai.

2. The suit is for partition.

3. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking in their original suit.

4. Admittedly, the plaintiff and the defendant are brothers and sons of the deceased Chiththa Gounder. It is not in dispute that the suit properties are the ancestral and joint family properties of the deceased Chiththa Gounder.

5. The case of the plaintiff is that the suit properties have been in joint possession and enjoyment of the plaintiff and the defendant, that there was no partition in respect of the suit properties and that the defendant, taking advantage of the mistakes occurred in patta, had been attempting to alienate the properties, that the plaintiff, after coming to know about the same, has sent a legal notice dated 03.09.2010, demanding partition and allotment of ½ share in the suit properties, that the defendant has sent a reply dated 13.09.2010 with false and untenable allegations and that since the defendant has not come forward to effect the partition, the plaintiff was constrained to file the above suit.

6. The defence of the defendant is that an oral partition was effected 20 years back in the presence of the village elders and as per the village custom, that the items 2 to 11 of the suit properties and the property situated in S.No.140/6B were allotted to the share of the defendant and the items 12 to 19 of the suit properties were allotted to the share of the plaintiff, that the 20th item of the suit properties and the well and the service connection therein were kept in joint possession and enjoyment of both parties, that both parties have been in separate possession and enjoyment of the properties allotted to them in the said oral partition, that the plaintiff has no right, title or interest in the properties allotted to the defendant and even if the plaintiff is having some rights, he has lost the same by ouster and that therefore the suit is liable to be dismissed.

7. The learned trial Judge, upon perusing the pleadings, has framed the following issues:

(i) Whether the plaintiff is entitled to get ½ share in the suit properties?

(ii) Whether there was an oral partition effected 20 years ago and that the defendant has been in separate possession and enjoyment of the items 2 to 11 of the suit properties allotted to him in the oral partition?

(iii) Whether 19 items of the suit properties were in separate possession of the parties to the suit?

(iv) What other reliefs, the plaintiff is entitled to?

8. During trial, the plaintiff has examined his son Arumugam as P.W.1 and one Kannappan as P.W.2 and exhibited 5 documents as Exs.A.1 to A.5. The respondent has examined himself as D.W.1 and one Raman as D.W.2 and exhibited 4 documents as Exs.B.1 to B.4. The learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both sides, has passed the impugned judgment dated 24.09.2014, dismissing the suit. Aggrieved by the dismissal of the suit, the plaintiff has preferred the present Appeal Suit.

9. The learned Counsel for the appellant would submit that the learned trial Judge has committed an error in dismissing the suit, based on the patta granted by the revenue authorities, that though the defendant has pleaded oral partition, he has miserably failed to prove the same, that the defendant has neither pleaded nor adduced any evidence to prove the oral partition alleged by him, that the trial Court has failed to consider that patta cannot be issued by the revenue author