IMPORTANT POINT
The court established that claims of oral partition require substantial evidence, and the burden of proof lies with the party asserting such claims.

JUDGMENT :

S. SOUNTHAR, J.

Prayer: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S. No. 126 of 2005, dated 22.11.2005, on the file of Second ‘Additional Subordinate Judge, Tirunelveli reversing the judgment and decree made in O.S. No. 597 of 2004, dated 13.09.2004, on the file of Second Additional District Munsif Court, Tirunelveli.

1. The Second Appeal is directed against the judgment and decree made in A.S. No. 126 of 2005, dated 22.11.2005, on the file of Second Additional Subordinate Judge, Tirunelveli reversing the judgment and decree made in O.S. No. 597 of 2004, dated 13.09.2004, on the file of Second Additional District Munsif Court, Tirunelveli.

2. The plaintiff in the suit for partition is the appellant. The trial Court granted the decree for partition. On appeal filed by the defendant, the First Appellate Court reversed the findings of the trial Court and dismissed the suit. Aggrieved by the same, the plaintiff is before this Court by filing this Second Appeal.

3. According to the Plaintiff, the suit property was purchased by the plaintiff and defendant under two sale deeds, dated 05.03.1990 marked as Ex.A1 and Ex.A2. It was asserted by the plaintiff that she had been in joint possession of the suit property along with the defendant. There was a misunderstanding between the plaintiff and defendant in December 1999 with regard to the joint enjoyment of the suit property. Therefore, the plaintiff demanded partition of her half share and the request of the plaintiff was not acceded to and therefore, she was constrained to file a suit for partition of her half share.

4. The defendant filed a written statement and raised the plea of oral partition. It was the case of the defendant that the northern half of the suit property was allotted to her share and southern portion was allotted to the plaintiff and in order to have an equitable distribution of shares, the defendant was directed by the mediators to pay a sum of Rs.25,000/- to the plaintiff and the same was also paid by the defendant. It was claimed by defendant that Rs.40,000/- was spent to improve the portion allotted to her share. The plaintiff filed a reply statement denying the oral partition as pleaded by the defendant.

5. Before the trial Court, the plaintiff was examined as PW-1 and on behalf of the defendant, she was examined as DW-1 and three witnesses were examined on behalf of the defendant as DW- 2 to DW-4. The sale deeds in favour of the plaintiff and defendant were marked as EX.A1 and Ex.A2 and no other documents were marked on either side.

6. The trial Court, on appreciation of oral and documentary evidence, came to the conclusion that the oral partition pleaded by the defendant was not proved and hence granted the decree for partition as prayed for. Aggrieved by the same, the defendant preferred an appeal in A.S. No. 126 of 2005, on the file of Second Additional Sub-Court, Tirunelveli and the First Appellate Court based on the evidence of DW-2 to DW-4, came to the conclusion that the defendant proved the oral partition and dismissed the suit. Aggrieved by the same, the plaintiff has come by way of this Second Appeal.

7. At the time of admission, the following substantial questions of law were formulated for consideration by order of this Court, dated 24.03.2006:

1. Whether the findings of the Lower Appellate Court are vitiated by its failure to consider the absence of any evidence on the side of the respondent regarding the alleged oral partition?

2. Whether the Lower Appellate Court is correct in casting the burden of proof on the appellant that there was no partition, especially, when the respondent failed to establish the alleged oral partition?

3. Whether the Lower Appellate Court is right in not framing the points for determination as contemplated under Order 41 Rule 31 of Civil Procedure Code which is held to be mandatory?

8. The learned counsel for the appellant submitted that the witnesses examined