JUDGMENT

The defendant in O.S.No.140 of 2010 is the appellant. Challenge is to the judgment and decree of the learned Subordinate Judge, Padmanabhapuram made in A.S.No.30 of 2017 confirming the judgment and decree made in O.S.No.140 of 2010 by the learned District Munsif, Padmanabhapuram, 2. The plaintiff/respondent herein filed the suit for declaration of his title and permanent injunction contending that the suit property along with the larger extent originally belonged to one Reginal. The said Reginal executed a Will in favour of the 5 sisters namely, Thilaga Rajam, Sobana Mary, Sahaya Mabel Stella, Gomas Rani and Mary Amala Bai on 13.06.1981. The said Reginal died on 06.02.1986. On her death, the suit property along with other properties devolved on the five sisters, who had effected an oral partition among themselves. In the said partition, the suit property, which consisted the ancestral house, was allotted to four sisters except the defendant. The reason assigned for such a partition is that the defendant had married and she left the village. Relying upon the said partition, the sisters had alienated various items of properties by way of settlement etc. The four sisters had on 13.11.1997 executed a settlement deed in favour of the plaintiff. Claiming that the defendant, who had no interest over the property, is attempting to interfere in his possession, the plaintiff has filed the present suit.

3. The suit was resisted by the defendant contending that the theory of oral partition is false. According to the defendant, there was no partition at any point of time. Therefore, the other four sisters had no right to settle specific property in favour of the plaintiff.

4. At trial, the plaintiff himself was examined as PW.1. Exs. A1 to A8 were marked. The defendant was examined as DW.1 and Exs. B1 to B13 were marked. The commissioner's report and plan were marked as Exs. C1 and C2.

5. Upon consideration of the evidence on record, the learned Trial Judge came to the conclusion that the plaintiff has established the oral partition and the fact that he was put in possession of the property pursuant to the settlement deed. The trial court also took note of the fact that the defendant, who had denied the oral partition in her written statement, had admitted the same in her evidence, but had claimed that the suit property alone was kept in common. The claim of the defendant was disbelieved on the basis of the revenue records that were produced by the plaintiff which showed his possession for the considerable length of time as well as mutation of revenue records in his name upon execution of the settlement dated 13.11.1997 which was marked as Ex. A1. On the above conclusion, the learned trial judge decreed the suit.

6. Aggrieved, the defendant preferred an appeal in A.S.No.30 of

2017. The learned Subordinate Judge, Padmanabhapuram, who heard the appeal, upon re-consideration of the evidence on record, concurred with the findings of the trial court and as a consequence, dismissed the appeal.

Hence this second appeal.

7. I have heard Mr.S.C.Herold Singh, learned counsel appearing for the appellant.

8. Mr.S.C.Herold Singh, learned counsel appearing for the appellant/

defendant would vehemently contend that the courts below were not right in granting a declaratory decree based on a unsubstantiated oral partition. According to him, the courts below erred in presuming there had been a partition on the basis of the recitals made in other registered instrument. He would further contend that the courts below overlooked the fact that the suit property, which housed the ancestral house, remained undivided.

9. I have considered the submissions made by the learned counsel for the appellant.

10. I am unable to concur with the contentions of the learned counsel.

The plaintiff came to court with a specific case that the suit property and a larger extent belonged to Reginal, who bequeathed to five sisters. The legatees entered into oral partition and various ite