The court ruled that an oral partition was established and the plaintiff cannot claim partial partition without including all relevant properties, adhering to heirs' rights under Hindu law.

JUDGMENT :

R.N. MANJULA, J.

The appellant is the first defendant. The suit has been filed by the plaintiff for partition of his ½ share in the suit property. The trial Court decreed the suit and passed a preliminary decree in respect of the ½ share in the suit property in favour of the plaintiff. The defendant filed an appeal. The appeal has also been dismissed by confirming the judgment of the trial Court.

Now the defendants have preferred this second appeal.

2. The short facts pleaded by the plaintiff in the plaint in brief as under:-

The plaintiff's father and the defendant's father, viz., Joki Gounder had two wives. The plaintiff born to Joki Gounder through his first wife, viz., Parvathammal and the defendant born to Joki Gounder through his second wife, viz., Pattu Ammal. The plaintiff's mother Parvathammal predeceased her husband Joki Gounder. Joki Gounder died 40 years ago. The suit property is the ancestral property and the plaintiff and defendant are enjoying the properties according to their convenience. The plaintiff is a retired teacher. When he was working as a teacher, the defendant alone was cultivating the entire property and dividing the profits in equal shares. Subsequent to the retirement of the plaintiff, he has taken up the cultivation of the portion of the property and the defendant is enjoying the property after digging up a Well. The plaintiff did not claim any share in the Well. The defendant claims 3 acres 59 cents in the suit property as though it is given to him through partition and he has also stated that the plaintiff is entitled to 1 acre 10 cents in the suit property, which is not correct. The plaintiff is entitled to ½ share out of 4 acres69 cents of the suit property. Since the defendant had got obtained Patta in respect of 3 acres 59 cents in the suit properties and attempted to tress-pass over the suit properties under the enjoyment of the plaintiff in Survey No.169/3 (which belongs to his mother), the plaintiff has filed this suit for partition.

3. The defendant resisted the suit by filing a written-statement, which is in brief :-

The plaintiff's mother died during delivery. The plaintiff's father married the defendant's mother, viz., Pattu Ammal, when the plaintiff was 8 years old. After four years, the defendant was born to Pattu Ammal. Pattu Ammal only arranged marriage for the plaintiff in the year 1974, subsequent to the death of his father and thereafter, there was an oral partition taken place in which an extent of 1 acre 98 cents in Survey No. 169/3 which stood in the name of the plaintiff's mother for an extent 1 acre in Survey No. 169/2 and totally 2 acres 98 cents was given to the plaintiff and the plaintiff is enjoying both the properties by having a common sub-divided Survey No. 169/2A. The remaining extent in Survey No. 169/2 measuring an extent of 3 acres 59 cents was allotted to the share of the defendant and he is enjoying the same by getting a sub-divided Survey No. 169/2B. So the plaintiff and the defendant are in enjoyment of their respective shares separately after the partition. The UDR patta has been effected in the year 1987 in accordance with the oral partition. In view of the prior notice, the plaintiff has filed a suit and there is no merits.

4. On the basis of the above pleadings, the trial Court has framed the following issues:-

(1) Whether the plaintiff is entitled to obtain at first instance, judgment by allocating one portion of the suit property, dividing it into 2 equal parts, and on that basis, to obtain a separate interest and to file a petition fo