The burden of proof regarding oral partition rests on the party asserting it, with mere pleading insufficient for presumption.

JUDGMENT

(Judgment of the Court was delivered by N.Sathish Kumar J.)

Challenging the decree and judgment of the Trial Court granting a preliminary decree holding that the plaintiffs are each entitled to1/4^th share in the suit property and also granting permanent injunction restraining the defendants from alienating the unsold property to the third parties, the present appeal has been filed by the unsuccessful defendants.

2. For the sake of convenience, the parties are referred to as per their rankings before the Trial Court.

3. The brief facts of the case of the plaintiffs are as follows :-

The suit property was originally purchased by one Salammal vide sale deed dated 23.03.2017. Her only son is Rajarathinam, who is the father of the plaintiffs and the defendants. The said Rajarathinam died intestate on 13.11.1982, leaving behind the plaintiffs and the defendants as his legal heirs. The mother of the plaintiffs and the defendants, namely, Seniyammal, also died intestate on 25.06.1997. The defendants are in possession of the suit property in the capacity of Co-owners and are attempting encumber the suit property. Hence, according to the plaintiffs, the plaintiffs and defendants are each entitled to 1/4^th share in the suit property. Therefore, the plaintiffs sought partition and permanent injunction restraining the defendants from alienating or encumbering the suit property to any third party or putting up any construction in the suit property.

4. The defendants admitted the relationship between the parties and the property originally belonged to their grandmother. It is the contention of the defendants in the written statement that during the life time of their father, an oral family arrangement was made by their father, late Rajarathinam, and the suit property was allotted in favour of the defendants and they are in possession of the property. Further, it is the contention of the defendants that the other property allotted to the plaintiffs was settled by way of settlement deed. The defendants are in separate possession for more than 35 years and the suit has been filed after 35 years. Hence, it is barred by limitation and therefore, opposed.

5. Based on the above pleadings, the Trial Court has framed the following issues :-

I) Whether the plaintiffs are entitled for the relief of preliminary decree for partition by allotment of 1/4th share each in the suit property ?

ii) Whether the plaintiffs are entitled for permanent injunction restraining the defendants from alienating the suit property?

Iii) To what other relief?

6. On the side of the plaintiffs P.W.1 and P.W.2 were examined and Exs.A1 to A5 were marked. On the side of the defendants, DW1 was examined and Exs.B.1 to B.5 were marked.

7. Upon hearing the arguments and perused the materials, the Trial Court decreed the suit. Challenging the same, the present appeal has been filed by the unsuccessful defendants.

8. The learned counsel appearing for the appellants/defendants would submit that the plaintiffs, having admitted that there was some oral partition in respect of their grand father's property, conveniently omitted to admit the oral partition in respect of the suit property. Therefore, according to the appellants, once the plaintiffs have admitted the allotment of their grand father's property, it has to be presumed that there was an oral partition in respect of the suit property also. It is further submitted that the suit has been filed after a long delay of 35 years and hence, the suit is not maintainable and therefore, the appellants pray for dismissal of the