Concurrent factual findings regarding the failure to prove an alleged oral partition cannot be overturned in second appeal under S. 100 of the Civil Procedure Code absent a substantial question of law.

PRAYER : Appeal filed under Section 100 of CPC., to set aside the judgment and Decree dated 04.01.2023 made in AS.No.5 of 2019 on the file of III Additional District Court, Gobichettipalayam confirming the judgment and decree dated 17.09.2018 made in O.S.No.66 of 2011 on the file of Sub-ordinate Judge, Gobichettipalayam.

For Appellant(s): P.Saravana Sowmiyan

Judgment

This Second Appeal has been filed to set aside the judgment and decree dated 04.01.2023 made in AS.No.5 of 2019 on the file of III Additional District Court, Gobichettipalayam confirming the judgment and decree dated 17.09.2018 made in O.S.No.66 of 2011 on the file of Sub-ordinate Judge, Gobichettipalayam.

2. Heard the learned counsel for the appellant and perused the documents and materials available on record.

3. The unsuccessful first defendant in the suit is the appellant herein. The respondents 1 to 4 filed a suit seeking partition of ½ share in the suit property. The suit was decreed by the Trial Court. Aggrieved by the same, a First Appeal was preferred by the defendants 1 and 4 in A.S.No.05 of 2019. The First Appellate Court also confirmed the findings of the Trial Court. Aggrieved over the concurrent findings of the Courts below, the unsuccessful first defendant is before this Court.

4. According to the plaintiffs, the suit properties were ancestral properties of the first plaintiff and his brother Perumal. The plaintiffs 2 to 4 are the children of the first plaintiff. The first defendant is the son of the above mentioned Perumal. The defendants 2 and 3 are the daughters of Perumal. The fourth defendant is the purchaser of the portion of the suit property from the first defendant. The suit was filed by the plaintiffs on the ground that ancestral properties were not partitioned among the first plaintiff and his brother Perumal.

Therefore, the plaintiffs sought for ½ share in the suit properties.

5. The first defendant filed written statement and resisted the suit on the ground that there was an oral partition between the first plaintiff and his brother, even during the life time of their father Ganapathi Nadar. It was further stated that the father of the first defendant Perumal executed a Will in favour of the first defendant on 27.02.2001, in respect of the suit properties allotted to him in the oral partition. Thus, according to the first defendant, he has been in possession and enjoyment of the suit property as an exclusive owner of the same and he sought for dismissal of the suit. The third defendant / sister of the first defendant filed a written statement and claimed that there was no oral partition in the family and sought for an allotment of 3/24 share in her favour. The fourth defendant who had purchased the second item of the suit property from the first defendant, filed a written statement and supported the case of the first defendant.

6. Before the Trial Court, on behalf of the plaintiffs, the first plaintiff was examined as P.W.1 and 10 documents were marked as Ex.A1 to A10. On behalf of the defendants, the first defendant was examined as D.W.1. The third and fourth defendants were examined as D.W.2 and D.W.3. Three other witnesses were examined as D.W.4 to D.W.6.

7. The Trial Court, after appreciating the oral and documentary evidence, came to the conclusion that the first defendant failed to establish the oral partition as claimed by him and decreed the suit. The defendants 1 & 4 preferred an Appeal in A.S.No.5 of 2019, on the file of the III Additional District Court, Gobichettipalayam. The First Appellate Court confirmed the findings of the Trial Court. Aggrieved by the concurrent findings of the Courts below, the first defendant alone has filed this Second Appeal.

8. The learned counsel for the appellant / first defendant would