An oral partition can be proved by evidence such as a legal notice issued by the defendant admitting the partition, statements of witnesses, and documents showing possession of the property by the plaintiff.

S.A.No.902 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.12.2023

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA

S.A.No.902 of 2023

and

C.M.P.No.28879 of 2023

B.Balakrishnan

... Appellant

Vs.

B.Jayakumar

... Respondent

PRAYER: Second Appeal filed under Section 100 of C.P.C. to set

aside the judgment and decree dated 29.11.2019 in A.S.No.6 of 2019

passed by the learned Subordinate Judge, Coonoor, confirming the

judgment and decree dated 11.01.2019 in O.S.No.45 of 2013, passed

by the learned District Munsif, Kotagiri.

For appellant

: Mr.L.Mouli

For respondent

: Mr.V.Chinnsamy

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S.A.No.902 of 2023

JUDGMENT

The defendant, who has concurrently lost before the Courts

below, is the appellant before this court and the facts which have

culminated in filing of the above second appeal are briefly set out

hereinbelow.

2.

For the ease of understanding, the parties are referred to

as plaintiff and defendant as before the Trial Court.

FACTS OF THE CASE:

2.1.

The plaintiff has filed a suit in O.S.No.45 of 2013 on the

file of District Munsif, Kotagiri, seeking permanent injunction

restraining the defendant from interfering with his peaceful possession

and enjoyment of the suit schedule property.

2.2.

It is the case of the plaintiff that the defendant is his eldest

brother and the suit schedule property is the ancestral property of their

father. After the death of their father, the plaintiff and the defendant

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S.A.No.902 of 2023

along with their other two brothers have orally partitioned the property

left behind by their father.

2.3.

The suit schedule property is a house property situated at

Kotagiri Village at Sackatha hamlet measuring 0.02 1/2 acres with

specific boundaries consisting of 3 rooms in the ground floor and 3

rooms in the first floor. The first floor has a wooden flooring and there

is a stair case going from ground floor to the first floor. The suit

schedule house bears Door No.4/141.

2.4.

The suit schedule property was allotted to the plaintiff and

the adjacent properties were allotted to other brothers and a 1/4^th share

in the building at Aravenu Bazaar was given to the defendant as his

share. The plaintiff, therefore, was the absolute owner of the suit

schedule property in which he has been living with his family

members ever since the partition. The defendant, who is residing in

the undivided building at Aravenu Bazaar trespassed into the suit

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S.A.No.902 of 2023

schedule property on 26.10.2013 and assaulted the plaintiff’s wife.

The plaintiff had lodged a police complaint with the Kotagiri Police.

The plaintiff would submit that he apprehends that the defendant

would once again trespass into the suit property and therefore, he has

come forward with the suit for permanent injunction.

2.5.

The defendant had filed a written statement inter alia

denying that there was a partition after the death of their father. It is

the contention of the defendant that the property continued to be in

joint possession and enjoyment of all the legal heirs. Since the

property has not been partitioned the defendant would submit that he

has the right to the property.

2.6.

It is the case of the defendant that he is not living in the

building at Aravenu bazaar, but, is living in the three rooms in the

first floor of the suit schedule mentioned property and two rooms in

the first floor in Door No.96. The defendant would further submit that

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S.A.No.902 of 2023

his father had property in Door Nos.96, 97 and 98 in Sackatha hamlet

and one portion of the building in Aravenu bazaar and all these

properties are yet to be partitioned. The defendant would submit that

his possession can be proved through gove