IMPORTANT POINT
The court established that the burden of proof for oral partition lies with the party asserting it, and mere testimony from interested parties is insufficient without corroborating evidence.

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. 103 of 2004, dated 3.10.2005, on the file of Subordinate Judge, Padmanabhapuram confirming the judgment and decree made in O.S. No. 64 of 1999, dated 15.07.2004 on the file of Principal District Munsif Court, Padmanabhapuram.

1. The Second Appeal is directed against the judgment and decree made in A.S. No. 103 of 2004, dated 3.10.2005, on the file of Subordinate Judge, Padmanabhapuram confirming the judgment and decree made in O.S. No. 64 of 1999, dated 15.07.2004, on the file of Principal District Munsif Court, Padmanabhapuram.

2. The plaintiff in the suit is the appellant. The suit is for partition. The suit as well as the appeal filed by the plaintiff were dismissed by the Courts below. Aggrieved by the same, the plaintiff is before this Court.

3. According to the appellant/Plaintiff, the suit property originally belong to his father Appavu Nadar. The first defendant is the mother of the plaintiff. The second defendant is his brother. The defendants 3 to 5 are his sisters. The father of the parties Appavu Nadar died in the year 1963. According to the Plaintiff, after the death of Appavu Nadar, he is entitled to 1/3rd share in the suit property along with his brother and mother.

4. The defendants 1 and 2 filed a written statement and resisted the claim for partition on the ground that already the suit property was partitioned orally among the family members. It was also claimed by the defendants that the defendants 3 to 5 released their share in the suit property in favour of first defendant and she sold her share in the property in favour of the second defendant. It was claimed by the defendants that for the share of the plaintiff in the suit property, he was allotted western portion of the shop with Door No. 1/51 and 810 square links of the property on the northern side. Thus the plaintiff was allotted 1.122 cent in the total extent of 6 cents and rest of the property was allotted to the share of the defendants.

5. The defendants 3 to 5 filed a written statement and claimed that they released their share in the suit property in favour of the first defendant. They also pleaded that the western half of shop in Door No. 1/51 was allotted to the share of plaintiff and the property on the northern side with tamarind tree was allotted to his share along with western half of the shop. Thus the defendants 3 to 5 also supported the plea of the defendants 1 and 3 that there was oral partition in the family and the plaintiff was allotted with specific property.

6. Before the trial Court, the Plaintiff was examined as PW.1 and an independent witness was examined as PW-2. On behalf of the plaintiff, nine documents were marked as Ex.A1 to Ex.A9. The second defendant was examined as DW-1 and the first defendant was examined as DW-2. On behalf of the defendants, eight documents were marked as Ex.B1 to Ex.B8. The trial Court appointed an Advocate Commissioner to note down the physical features and his report and plan were marked as Ex.C1 and Ex.C2.

7. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the defendants proved the plea of oral partition and consequently, dismissed the suit. Aggrieved by the same, the plaintiff filed an appeal in A.S. No. 103 of 2004, on the file of Sub-Court, Padmanabhapuram. The First Appellate Court affirmed the findings of the trial Court and dismissed the appeal. Aggrieved by the concurrent findings of the Courts below, the plaintiff has come forward by way of this Second Appeal.

8. At the time of admission, this Court has formulated the following substantial question of law, by order, dated 14.03.2006:

Whether the legal burden in proving the oral partition has been discharged effectively?

9. The learned counsel for the appellant vehemently contended that the plea of oral partition made by the defendants was not