KOLANDASAMY GOUNDER Vs. THIRUMALAI GOUNDER

JUDGEMENT

(1.) THE plaintiff in O.S. No. 272 of 1990 on the file of the Second Additional Sub-Court, Erode being aggrieved by the judgment and decree dated 20.01.1992 passed therein has filed the above appeal.

(2.) FOR the sake of convenience, the parties are referred to as per their ranking in the suit.

(3.) THE learned counsel for the appellant submitted that there was no oral partition between the vendors of the plaintiff and the defendants and the oral partition pleaded by the defendants has not been established by acceptable evidence. THE Trial Court has not properly considered the oral and documentary evidence available on record. THE recitals in Ex.A-1 will show that the plaintiff had purchased only an undivided share, though the extent is mentioned as 1.45 1/2 acres. THE learned counsel further submitted that Exs.A-9 to A-12, Adangal extract will show that the suit properties stand jointly in the name of the parties and joint patta has been issued which will show that there was no partition as claimed by the defendants. Though, the vendors of the plaintiff and the defendants have sold independently different properties under different documents, as far as the suit property is concerned there was no partition. He further submitted that in Ex.B-1, reply notice sent by the defendants, it is mentioned that the oral partition took place in the Tamil year "Vibava Varudam". THEn they sent Ex.B-3, subsequently clarifying that by mistake the Tamil Year was mentioned as "Vibava Varudam" instead of "Virodhi Kirudu". For the Tamil Year Virodhi Kirudu, the corresponding English year is 1960. But D.W.1, the first defendant when cross examined was unable to speak about the month and year in which the alleged oral partition took place. THE learned counsel also submitted that though a specific extent is mentioned in Ex. A-1, since what has been purchased by the plaintiff was only an undivided share and the subsequent resu rvey shows that there was larger extent, in the larger extent, the plaintiff will be entitled to half share as boundaries will prevail over the extent.