IMPORTANT POINT
The burden of proof in establishing the existence and extent of an oral partition lies with the party claiming such partition.

JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 24.08.2017 made in A.S. No.14 of 2016 on the file of the Third Additional District Court, Salem reversing the judgment and decree dated 27.02.2013 made in O.S. No.106 of 2009 on the file of the Sub Court, Mettur.)

1. The 10th defendant in a suit for partition and separate possession having succeeded before the Trial Court but suffered reversal findings before the First Appellate Court is the appellant before me.

2. The parties are described as per the litigative status before the Trial Court.

3. The material facts that are necessary for deciding the present Second Appeal are as hereunder :

3.1. The plaintiff states that the suit property originally belonged to one Chellappa Gounder. Through the first wife of Chellappa Gounder, he had 2 sons by name Karumalai Gounder and Sidha Gounder; through second wife he had one daughter by the name, Sembayee and one son by the name Arjuna Gounder; through his third wife he had two sons, Kulanthaipaiyan and Nachiappan.

3.2. According to the plaintiff, on 12.12.1940, there was a partition between Chellappa Gounder and his legal heirs and under the said partition Chellapa Gounder was allotted 'A' schedule property, Karumalai Gounder was allotted 'B' schedule property, Sidha Gounder was allotted 'C' schedule property, Arjuna Gounder was allotted 'D' schedule property, Kulanthaipaiyan and Nachiappan were allotted 'E' schedule property. According to the plaintiff, the said partition deed was acted upon and these respective portions took possession of the allotted partition and were in possession and enjoyment of the same. It is also stated by the plaintiff that the 'A' schedule property allotted to Chellappa Gounder was to be enjoyed by him and his second wife Chellammal during their lifetime and thereafter, the same was to be divided between Karumalai Gounder, Sidha Gounder and Arjuna Gounder. Subsequent to the demise of Chellappa Gounder, his second wife Chellammal was cultivating the suit property alone leaving the property situated in Survey No. 117/2, of an extent of 7.77 acres out of the total extent of 12.03 acres.

3.3. The plaintiff also contended that Chellammal died in 1984. The extent of 7.77 acres out of the total extent of 12.03 acres was orally partitioned amongst Karumalai Gounder, Sidha Gounder and Arjuna Gounder even during the lifetime of Chellammal and subsequent to the lifetime of Chellappa Gounder, the plaintiff contends that the suit property was kept for common enjoyment between the plaintiff and the defendants 1 to 9. As the defendants 1 to 9 were evading partition, the plaintiff issued a notice calling upon the defendant, claiming a 1/6th equal share and to put the plaintiff in separate possession and enjoyment of the said 1/6th share. The defendants 1 to 5 sent a reply notice on 25.06.2009 with false averments. The defendants 4 to 6, without notice to the plaintiff, sold 1.01 acres in S.No.29/2 and 41.½ cents in S.No.29/3 and 1/9th share in S.No.29/4 to the 10th defendant by way of a sale deed dated 16.09.2009, without specific boundaries and without a partition by metes and bounds. The plaintiff contends that the said sale deed dated 16.09.2009 executed in favour of the 10th defendant, namely A. Samiappan is not binding on him. The plaintiff, therefore filed a suit seeking separate possession and enjoyment of his 1/6th share in the suit property and also prayed for a relief of permanent injunction, restraining the defendants from alienating, altering the nature or from making any further development in the suit property.

4. The 5th defendant filed a written statement which was adopted by the defendants 1 to 4 and 6. According to these defendants, Chellapa Gounder’s 2nd wife was Chellammal alias Sellayeammal; subsequent to the demise of alleged Sellayeammal, in 1984, the suit property was not in common enjoyment as alleged; there is no demand for