JUDGMENT Mohan, J. 1. The appeal arises out of O.S.No. 1217 of 1980 on the file of the learned Subordinate Judge of Salem, in which the respondent herein prayed for partition of his one half share in the suit schedule properties and allotment of one such share to him with possession. The case of the plaintiff-respondent was as follows: By a sale deed dated 13.3.1964 the plaint A Schedule property came to be purchased jointly in the names of the plaintiff and the defendant from one Narasiammal and others. Similarly, on 7.3.1966 the plaintiff and the defendant jointly purchased the B schedule property from one Sathan Bibi Ammal. From the date of those purchase the plaintiff and the defendant are being in enjoyment of the properties. However, for the sake of convenience, they are separately enjoying portions of the properties by separate cultivation without any division by metes and bounds. By the joint efforts of both parties the house in the A schedule land was constructed seven years ago at a cost of Rs. 15,000. Adjoining that house there are two sheds put up by the plaintiff. The plaintiff is occupying a portion of the house and the two sheds and the remaining portion of the terraced house is occupied by the defendant. After the purchase, both the sharers planted 150 coconut trees in the A schedule property. Two years prior to the suit, they also planted 200 coconut trees. In the year of suit and in the previous year both sharers planted about 300 coconut trees in the B schedule property. There are two wells, one in each, in the A and B schedule properties. Both parties spent a sum of Rs. 10,000 and dug a new well in the B schedule property. There is an oil engine installed in the newly dug well, which was dug at common cost. There is an electric motor with pump set of 5 H.P. installed in the A schedule well. Thus, both the parties have been exercising equal rights in the entire A and B schedule lands, together with the well and pump set. Recently, misunderstandings arose between the parties. At the instigation of the sons of the defendant, the defendant and her men are giving lot of pin pricks to the plaintiff and his family members in the enjoyment of the properties by the plaintiff jointly with the defendant. Recently, misunderstandings arose between the parties. At the instigation of the sons of the defendant, the defendant and her men are giving lot of pin pricks to the plaintiff and his family members in the enjoyment of the properties by the plaintiff jointly with the defendant. In fact, recently the plaintiff was prevented by the defendant and her men from entering the properties, particularly the suit building which is in the plaintiffs occupation. All mediations failed. Hence the suit. 2. In her written statement, the defendant urged that it is false to state that the plaintiff and the defendant are jointly cultivating the A and B schedule properties and that they are in separate possession and enjoyment only for the sake of convenience without actual division by metes and bounds. As early as in 1969, the plaintiff and the defendant actually divided both the schedule item into two equal shares and they have been separately cultivating their respective portions. This was by means of an oral partition. The defendant was allotted the northern portion while the plaintiff was allotted the southern portion. Before partition, there were only two thatched sheds in the A schedule property, of which one shed went to the share of the defendant in the oral partition. About three years after the said partition, the defendant spent about Rs. 50,000 and constructed a pucca house in the place of the thatched shed in her share. The entire money therefor was solely spent by the defendant and the plaintiff has nothing to do with the house, in which the defendant and her sons alone are now living. The plaintiff has absolutely no manner of right or possession either to the terraced house or the thatched house adjoining the same. It is false to say that ten years after the purchase the plaintiff and the defendant jointly planted 150 coconut trees in the A schedule property and again they planted 200 coconut trees about two years prior to suit and again 300 coconut trees in the year prior to the institution of the suit in the B schedule property. The plaintiff alone had planted 300 coconut trees and the defendant had planted 250 coconut trees in their respective portions allotted pursuant to the oral partition. There was no planting at all after the partition. The plaintiff alone had planted 300 coconut trees and the defendant had planted 250 coconut trees in their respective portions allotted pursuant to the oral partition. There was no planting at all after the partition. the A schedule well, there is enough water and an electric motor and pump set has been fixed, and underground pipeline has been laid to take water to the B schedule property. There is not much water in the well in the B schedule property and that well is not practically being used by the sharers. So, only from the well in the A Schedule property water is taken by means of the underground pipeline. Both the plaintiff and the defendant have dug big pits like mini wells in their respective portions. The underground pipeline water is allowed to stagnate in the mini wells by the respective parties and water is separately pumped out by the respective parties to their respective portions with the aid of oil engine separately installed. The plaintiff had installed an oil engine a year prior to the suit while the defendant had installed an oil engine in her portion two years prior to the suit. The well in the A schedule property and the electric motor and pump-set therein are common to both parties. It is false to say that the well in the B schedule property was dug by the plaintiff and the defendant jointly spending Rs. 10,000. The new well in the B schedule property was dug by the defendant alone with her sole funds and the plaintiff has absolutely nothing to do with it. 3. The share of the defendant in the B schedule property was inferior in soil. There were also lot of pebbles in that share and the defendant improved the same at considerable expense. There are poromboke lands adjoining the B Schedule property and the defendant is cultivating the same. The plaintiff attempted to plant coconut saplings in the poromboke land in the enjoyment of the defendant and that was objected to by the defendant. Due to enmity on that account the plaintiff has come forward with the suit projecting false claims. The plaintiff is not entitled to any relief in the suit. The plaintiff attempted to plant coconut saplings in the poromboke land in the enjoyment of the defendant and that was objected to by the defendant. Due to enmity on that account the plaintiff has come forward with the suit projecting false claims. The plaintiff is not entitled to any relief in the suit. In any event, the defendant should be allotted the portion in her possession and the house constructed by her and the well dug by her in the event of a decree being passed. The defendant is entitled to equities. 4. On the above pleadings, the following issues were framed for trial by the learned Subordinate Judge: (1) Whether the oral partition pleaded by the defendant is true? (2) Whether the house in the A Schedule property was constructed and the well in the B Schedule property was dug jointly by the plaintiff and the defendant? (3) Whether the improvements alleged by the defendant is true? (4) Whether the plaintiff is entitled to the partition and separate possession prayed for? (5) Whether the defendant is entitled to the equity prayed for? and (6) To what relief is the plaintiff entitled? 5. On the side of the plaintiff, P.W.1 alone tendered evidence, who is none other than the plaintiff himself, while on the side of the defendant, she examined herself as D.W.1 and further examined D.Ws. 2 to 7. The two sale deeds by which the properties came to be purchased were marked as Exhibits A.1 and A.2 and the decree obtained by the plaintiffs sister against the defendant and her sons in O.S.No. 1201 of 1979 on the file of the trial Court was marked as Exhibit A.3. On the side of the defendants, Exhibits B.1 to B.17 were marked. 6. On a consideration of this evidence, the learned Subordinate Judge found that inasmuch as the defendant is the one who pleads an oral partition, the onus is on her to prove the same. He found that the evidence of D.Ws.1, 5 and 6 did not disclose that there was an oral partition and consequently he held that the oral partition pleaded was not true. In view of these findings, on issues 1 to 3, the learned Subordinate Judge held that the plaintiff was entitled to the relief of partition. On issue 5 it was held that the defendant was not entitled to any equity. In view of these findings, on issues 1 to 3, the learned Subordinate Judge held that the plaintiff was entitled to the relief of partition. On issue 5 it was held that the defendant was not entitled to any equity. Thus, under issue 6, the Court below passed a preliminary decree for partition and separate possession. 7. K. Doraiswami, learned Counsel for the appellant, urges that the Court below had completely misdirected itself with reference to the scope of the defence. It is true that when properties had come to be jointly purchased under Exhibits A.1 and A.2, it will continue to be joint unless it is clearly established that there was a partition by metes and bounds. It is also true that the person who pleads a prior oral partition must prove the same. But, that is not the end of the matter. It is incumbent upon the plaintiff to explain as to how the parties have been enjoying the separate shares separately. Further, this is a case in which the evidence of P.W.1 had not been adverted to at all. He categorically admits that he does not know the maistry who was in charge of the construction of the house. It is not clear as to how much he had paid to the husband of the defendant, though he would say that as and when money was demanded he used to pay. The house-tax receipts standing in the names of the defendant's sons have been produced. Not a single documentary evidence has been filed on behalf of the plaintiff to show that there was any joint enjoyment as alleged by him. Excepting the singular fact that the patta continued to be joint, there is nothing else to show, including the payment of kist, that there was any jointness. On the contrary it is, the defendants, by producing Exhibits B.13 to B.16, have established separate enjoyment evidenced by payment of kist for the portion in the defendant's occupation. No such record is produced on the side of the plaintiff. 8. Doraiswami further urges that merely because there are few discrepancies in the evidence of D.Ws.5 and 6, the same cannot be ignored when they are totally independent witnesses and therefore, much credibility ought to have been attached to their evidence. No such record is produced on the side of the plaintiff. 8. Doraiswami further urges that merely because there are few discrepancies in the evidence of D.Ws.5 and 6, the same cannot be ignored when they are totally independent witnesses and therefore, much credibility ought to have been attached to their evidence. Besides, this is a case in which D.Ws.2 and 3 speak to the construction of the house during the lifetime of the defendant's husband and they are assertive that the plaintiff had nothing to do with the construction of the house. They have not been seriously cross-examined. Certainly, such a state of affairs would not have been allowed to prevail had the plaintiff been in joint enjoyment and possession of the properties. It is true the defendant had not produced the accounts, in relation to the digging of the well. But, she was never called upon to produce the accounts. As regards the construction of the house, since it was dealt with by the husband of the defendant, she had no opportunity to maintain any accounts. Here again, the plaintiff had not called upon her to produce the same. Therefore, looked at from any point of view, in a case where the purchases under Exhibits A.1 and A.2 took place as early as in 1964 and 1966, if it did not occur to the plaintiff to claim partition, certainly, it stands to reason that there should have been an oral partition. Otherwise, the long, separate enjoyment clearly would tend to show that there was an oral partition, which plea, according to learned Counsel for the appellant, has to be upheld. 9. Per contra, V. Srinivasan, learned Counsel for the respondent, would urge that the learned trial Judge had correctly thrown the onus of proof stating that if the jointness is sought to be disproved, it can only be by means of proving a prior partition. The burden of such proof is on the person who sets up the oral partition. Once that case fails, then certainly the plaintiff is entitled to a decree for partition. It is that approach which the lower Court had adopted and it cannot be found fault with. Looked at from this point of view, the other evidence is immaterial, either that of P.W.1 or that of D.Ws.2 and 3. Therefore, the failure to discuss their evidence would not matter. 10. It is that approach which the lower Court had adopted and it cannot be found fault with. Looked at from this point of view, the other evidence is immaterial, either that of P.W.1 or that of D.Ws.2 and 3. Therefore, the failure to discuss their evidence would not matter. 10. The oral partition is sought to be proved by D.W.1 who, undoubtedly, is an interested party and her testimony has to be rejected. D.Ws.5 and 6 are contradicting themselves in material particulars, as to whether the lands were actually measured and whether the village officers were present. Such a discrepancy could not occur if really there was an oral partition and if they were the real panchayatdars. But, as rightly found by the Court below, they have been got up for the purpose of this case. 11. No doubt, the plaintiff did not call upon the defendant to produce the accounts. But, in so far as the defendant pleads a prior partition, it is on her alone the obligation is thrown as to the proof of the prior oral partition by whatever method she method she wanted. From this point of view at least, it was her duty to have produced the accounts which she claimed she had, both in relation to the building of the house as well as the digging of the well. 12. Having regard to the above arguments, we pose the one and only question for determination, namely whether the oral partition pleaded by the defendant-appellant is true. 13. For a moment, it cannot be denied that in so far as Exhibits A.1 and A.2 clearly establish that the suit properties which Form A and B Schedules came to be purchased jointly in the names of the plaintiff and the defendant, the properties would, undoubtedly, belong to both the parties jointly. To destroy the jointness, the defendant sets up a plea of oral partition in the year 1969. According to her, during the lifetime of her husband, Kuttiappa, an oral partition was effected through mediators, who inter alia included D.Ws.5 and 6. Both D.Ws.5 and speak to the effecting of the partition. To destroy the jointness, the defendant sets up a plea of oral partition in the year 1969. According to her, during the lifetime of her husband, Kuttiappa, an oral partition was effected through mediators, who inter alia included D.Ws.5 and 6. Both D.Ws.5 and speak to the effecting of the partition. Of course, there are discrepancies in so far as D.W.5 would say that the documents were handed over to him to establish jointness, obviously referring to Exhibits A.1 and A.2, and according to him, one property stood in the name of the plaintiff and the other stood in the name of the defendant and they purported to divide them into two equal shares. This case is not supported by D.W.6. Equally, there is another discrepancy as to whether the lands were measured or not, and whether the village officers were present or not. These, in our considered view, are not such material discrepancies as to reject their evidence altogether. In this connection, it is worthwhile to note that they are independent witnesses. They are men of sufficient status and they are not men of straw. Of course, there are bound to be discrepancies concerning a matter which took place twelve years prior to the time of evidence, namely, the oral partition, because no one has a computer memory. Giving allowance to these small discrepancies, if we take their evidence in conjunction with the other evidence, which unfortunately the learned Subordinate Judge did not even care to look at, we are of the opinion that the oral partition pleaded by the defendant is true. Why do we say so? Take the case of the construction of the house. P.W.1 seems to be utterly ignorant as to how much he paid for the construction of the house which took place at a time when Kuttiappa, the husband of the first defendant, was alive. He also admits that all the materials for the building of the house were purchased by Kuttiappa and he would not remember how much he had paid. He did not purchase any item. Nor, again, did he keep a note of the amounts paid, though payments are alleged to have spread over for a period of one year. He was not even sure as to when the construction began and when it ended. He did not purchase any item. Nor, again, did he keep a note of the amounts paid, though payments are alleged to have spread over for a period of one year. He was not even sure as to when the construction began and when it ended. He was not aware of the maistry in charge of the construction and when the house-warming ceremony took place, he does not remember conveniently. We arc somewhat surprised as to how a person who had invested half the share for the building of the house which nearly cost Rs. 40,000 could have remained an idle on looker and could yet claim a right in the house. Besides his own ignorance, when we take up the evidence of D.Ws. 2 and 3, they are categoric that the plaintiff has nothing to do with the building of the house. As a matter of fact, D.W.3, the maistry, who was in charge of the construction of the house, would state that he had not seen the plaintiff at all. We do not expect such a situation if really the plaintiff had contributed to the building of the house. The matter does not end there. When we come to the documentary evidence, namely Exhibit B.17 receipts for payment of electricity charges, also disclose separate enjoyment of the defendant and her sons of the house put up by her in the A Schedule. Now, we come to the house-tax receipts which have been marked as Exhibits B.8 to B.12. All of them stand in the name of Manickam who is admittedly one of the sons of the defendant. Merely because the entry in the panchayat registry as to the ownership of the house is not produced, that does not mean the case of the defendant will have to be thrown out. To counter these house-tax receipts as evidenced by Exhibits B.8 to B.12, the easiest thing for the plaintiff would have been to produce the entry in the panchayat registry showing joint possession and ownership. That, for reasons best known to himself, he has not done. 14. With that, we go to the accounts. No doubt, the defendant had not produced the accounts concerning the construction of the house. But, why did not the plaintiffs counsel take out notice to her calling upon her to produce the accounts? That has not been done. That, for reasons best known to himself, he has not done. 14. With that, we go to the accounts. No doubt, the defendant had not produced the accounts concerning the construction of the house. But, why did not the plaintiffs counsel take out notice to her calling upon her to produce the accounts? That has not been done. In this connection, it is but proper to note that the entire construction of the house took place at a time when the husband of the defendant, namely Kuttiappa, was alive who alone, as admitted by both sides, was in charge of the construction. It was he who had maintained the accounts for the construction of the house. Therefore, the failure of the defendant to have produced the accounts when she was not asked to do so would not very much matter. The contrary comment by the learned Subordinate Judge is not warranted. With this, we go on to the construction of the well, which is in the B schedule property. The definite case of the defendant as D.W.1, taken along with the testimony of D.W.4, would clearly show that the defendant alone spent for the digging of the well. Here again, when she was not called upon to produce the accounts, much cannot be made out of the same. 15. The evidence of P.W.1 now requires to be seen. According to him, he had been purchasing diesel for the oil engine, but he does not even produce the bills. He would go to the extent of saying that there has been joint enjoyment of the lands and both the parties were jointly spending and harvesting jointly and dividing the produce. Even after the case, at no point of time, according to him, was there any separate cultivation of enjoyment. This evidence is opposed to the averments of the plaintiff in paragraph 5 of his plaint, which we extract below: ... for convenience's sake they are separately enjoying portions of the properties without any division or partition among themselves by metes and bounds. This plea is given a go-by in the evidence. All these important aspects have not been adverted to by the learned Subordinate Judge. It stands to reason that but for the separate enjoyment as claimed by the defendant, she would not be paying kist for her portion as evidenced by Exhibits B-14, B-15 and B-16. This plea is given a go-by in the evidence. All these important aspects have not been adverted to by the learned Subordinate Judge. It stands to reason that but for the separate enjoyment as claimed by the defendant, she would not be paying kist for her portion as evidenced by Exhibits B-14, B-15 and B-16. Such a separate enjoyment cannot be defeated on the sole ground of jointness of patta. One can even almost take judicial notice of the fact that seldom in rural areas steps are taken to have mutation of names. More so, when this is a case of oral partition. It is a settled proposition that it is not necessary that a partition must be borne out by a document; it can be oral Vide Katma Nathiar v. The Rajah of Sivaganga (1963)9 Moore's I.A. 539. 16. One other conduct of the plaintiff requires to be noticed. The purchases in this case were as early in 1964 and 1966. Why did it never occur to the plaintiff till 1980 to demand a partition? No explanation is offered. To our minds it appears that all was well so long as Kuttiappa was alive and it is after his death, the plaintiff seems to have though of encashing the situation that there was no document to support partition and what ultimately triggered off the cause was Exhibit A.3, the decree which the plaintiff's sister obtained against the defendant and her sons. This embitterment led to the suit. We are of the view that considering the entire evidence, not by resting on the evidence of D.Ws.5 and 6 alone, the oral partition pleaded by the appellant is true. Accordingly, we set aside the judgment and decree of the learned Subordinate Judge and dismiss the suit. However, there will be no order as to costs.