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2016 DIGILAW 2847 (MAD)

A. Krishnan v. A. Ponnaiyan

2016-08-11

M.DURAISWAMY

body2016
JUDGMENT : M. DURAISWAMY, J. 1. The above Second Appeal arises against the judgment and decree passed in A.S. No. 44 of 1999 on the file of Principal District Court, Coimbatore, reversing the judgment and decree passed in O.S. No. 359/1997 on the file of II Additional Subordinate Court, Coimbatore. The appellants 3 to 11 are the legal representatives of the deceased defendants 1 and 2. The first respondent is the plaintiff and the respondents 2 and 3 were the defendants 3 and 4. Civil Revision Petition arises against the judgment and decree passed in A.S. No. 141 of 2005 on the file of Principal Subordinate Court, Coimbatore, confirming the judgment and decree passed in O.S. No. 493 of 2000 on the file of III Additional District Munsif Court, Coimbatore. 2. Civil Revision Petition has been filed under Section 115 of the Civil Procedure Code, challenging the judgment and decree passed by the Courts below for the reason that the value of the Appeal and the Suit is less than Rs.25,000/-. The petitioner was the plaintiff in the suit and the respondents 3 to 11 are the legal representatives of the deceased defendants. Since the issues, involved in both these matters are inter-connected, both the matters are disposed of by this Common Judgment. 3. The brief case of the plaintiff, that are necessary for the disposal of the Second Appeal and the Civil Revision Petition, are as follows:- The first respondent in the Second Appeal filed a suit in O.S. No. 359/1997 for partition and separate possession. He filed another suit in O.S. No. 493/2000, claiming a sum of Rs.24,000/-, being the past mesne profits for three years and future mesne profits. The plaintiff and the defendants 1 and 2 are brothers. 4. According to the plaintiff, the suit property was purchased jointly in the names of all the three brothers. The plaintiff was a minor at the time of purchase and the 1st defendant acted as a Guardian of the plaintiff. According to the plaintiff, since the date of purchase, the property was being enjoyed jointly. The first defendant was receiving all the rents for and on behalf of the other two brothers. This arrangement was adhered to since the second defendant was in a transferable job and the plaintiff was a minor. The property was purchased from the income derived from the suit property. 5. The first defendant was receiving all the rents for and on behalf of the other two brothers. This arrangement was adhered to since the second defendant was in a transferable job and the plaintiff was a minor. The property was purchased from the income derived from the suit property. 5. Subsequently, the defendants 1 and 2 acted against the interest of the plaintiff. Hence the plaintiff realised that it is no more possible for the plaintiff to enjoy the property in common and hence he issued a notice, demanding partition and metes and bounds of his 1/3 share. However, the defendants 1 and 2 failed to partition the property. In these circumstances, the plaintiff filed a suit for partition and separate possession. Since the defendants 1 and 2 were in enjoyment of the suit property to the exclusion of the plaintiff, by collecting rents from the tenants and not making any payment to the plaintiff towards his share, the plaintiff claimed a sum of Rs.8,000/- p.a. as mesne profits. The plaintiff filed a suit in O.S. No. 493/2000, claiming Rs.24,000/- towards past mesne profits for three years and also claimed future mesne profits. 6. The brief case of the defendants 1 and 2 is as follows: According to the defendants, the plaintiff was a minor, aged about 12 years at the time of purchase of the suit property. He had no source of income of money and the entire money, sale price and expenses were borne by the defendants 1 and 2. The suit property was originally the property of their father and it was sold in court auction to one Kaliappa Gounder. From Kaliappa Gounder, the defendants 1 and 2, out of the sentiments of the family, purchased the same. The plaintiff never contributed anything and there was no income of the family for whatsoever. 7. In the oral partition, held in the year 1994 between the brothers, Door No. 13/6 was allotted to the first defendant; the second defendant was allotted Door No. 13/6A and the plaintiff was given a building, for which, door number was to be assigned. The first defendant alone applied to the Municipality for execution of the plan in the suit property. Tax was also levied on the first defendant's name. The plaintiff cannot ask for mesne profits in a separate suit and he should have asked the prayer in the partition suit itself. The first defendant alone applied to the Municipality for execution of the plan in the suit property. Tax was also levied on the first defendant's name. The plaintiff cannot ask for mesne profits in a separate suit and he should have asked the prayer in the partition suit itself. In these circumstances, the defendants 1 and 2 prayed for dismissal of both the suits. 8. Before the trial Court, in the suit in O.S. No. 359/1997, on the side of the plaintiff, P.W.1 was examined and 15 documents Exs.A.1 to A.15 were marked and on the side of the defendants, defendants 1 and 2 were examined as D.W.1 and D.W.2 and four documents Exs.B.1 to B.4 were marked. 9. In the suit in O.S. No. 493/2000, on the side of the plaintiff, P.W.1 was examined and 17 documents, Exs.A.1 to A.17 were marked. On the side of the defendant's, they were examined as D.W.1 and D.W.2. However, no document was marked on the side of the defendants. 10. The trial Court, taking into consideration the case of both the parties, dismissed both the suits. Aggrieved over the judgment and decree in O.S. No. 359/1997, the plaintiff preferred an appeal in A.S. No. 44/1999 on the file of Principal District Court, Coimbatore and against the judgment and decree passed in O.S. No. 493/2000, the plaintiff preferred an appeal in A.S. No141/2005 on the file of Principal Subordinate Court, Coimbatore. The lower appellate Court, taking into consideration the case of both the parties, allowed the appeal in S. No. 44/1999 and passed a preliminary decree. The Principal Subordinate Court, Coimbatore dismissed the appeal in A.S. No. 141/2005 and confirmed the judgment and decree passed by the trial court in O.S. No. 493/2000. Aggrieved over the judgments and decrees of the courts below, the defendants have filed a Second Appeal in S.A. No. 719/2000 and the plaintiff preferred a Civil Revision Petition in C.R.P. (NPD) No. 1651/2006. 11. Heard Mr. K.A. Ravindran, the learned counsel appearing for the petitioner in CRP (NPD) No. 1651/2006 and the first respondent in the Second Appeal in S.A. No. 719/2000 and Mr. C.R. Prasannan, learned counsel appearing for the appellants in S.A. No. 719/2000 and for respondents 2, 4 to 11 in CRP (NPD) No. 1651/2006. 12. 11. Heard Mr. K.A. Ravindran, the learned counsel appearing for the petitioner in CRP (NPD) No. 1651/2006 and the first respondent in the Second Appeal in S.A. No. 719/2000 and Mr. C.R. Prasannan, learned counsel appearing for the appellants in S.A. No. 719/2000 and for respondents 2, 4 to 11 in CRP (NPD) No. 1651/2006. 12. At the time of admission of the above Second Appeal, substantial question of law arose for consideration is: Whether in law the lower Appellate Court erred in overlooking that the suit itself is not maintainable for partition, as he is not in possession of the suit properties and that there is not even a plea with regard to possession or joint possession to maintain the suit? 13. The appellants have also raised the following substantial questions of law on 20.07.2016: 1. Whether in law the judgment of the lower Appellate Court is vitiated in as much it did not frame relevant issues as required under Order 41 Rule 31 CPC? 2. Whether in law the lower appellate court erred in overlooking that the plaintiff is not entitled to any share in the suit properties, when the first defendant has proved by oral and documentary evidence of payment of entire consideration towards the purchase of suit property under Ex.A.1 rebutting presumption as per Section 45 of Transfer of Property Act? 3. Having not reversed the finding of the Trial Court that the superstructure in the suit property was put up by the first defendant at his expenses, whether in law the lower appellate court erred in overlooking that the plaintiff having acquiesced would be at the best entitled to compensation in respect of the land alone subject to his proof of entitlement to the same? 14. Mr. C.R. Prasannan, learned counsel appearing for the appellants in the Second Appeal and the respondents in the Civil Revision Petition, submitted that the lower appellate Court ought to have framed the points for consideration under Order 41 Rule 31 of Civil Procedure Code and non-framing of the points for consideration would lead to setting aside the judgment and decree passed by the lower appellate court. When the first defendant had established by his oral and documentary evidences with regard to the purchase of the property, under Ex.A.1, rebutting presumption as per Sec. 45 of the Transfer of Property Act will not entitle the plaintiff to get a preliminary decree for partition. When the finding of the trial court, with regard to the construction of the super structure, was not reversed by the lower appellate court, the plaintiff, having acquiesced would be at the best entitled to compensation in respect of the land alone, subject to the proof of entitlement to the same. In support of his contention, the learned counsel relied on the following judgments: (i) 2016 (4) CTC 108 (Chintaman Namdev Patil (dead) vs. Sukhdev Namdev Patil and another), wherein the Hon'ble Supreme Court of India held as follows: 18. In our considered opinion, it was legally obligatory upon the High Court to properly set out the case of the parties, findings recorded by the Trial Court and the first Appellate Court, arguments of the parties on the questions of law framed and then answer the questions framed in the light of law applicable to the controversy involved by giving its reasoning. Order 20 Rule 4(2) and Rule 5 read with Order 41 Rule 31 provides for this requirement. 19. We may also consider apposite to mention that this Court had the occasion to examine the scope of Section 100 of the Code in Santosh Hazaro vs. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179 , wherein Justice R.C. Lahoti (as His Lordship then was and later became CJI) speaking for the three-judge Bench explained the scope and jurisdiction of the High Court while deciding the second appeal under Section 100 of the Code. The High Court, in our opinion, should have kept in consideration the law laid down in this case while deciding the second appeal. (ii) 2011 (4) CTC 343 (H. Siddiqui (dead) by L.Rs vs. A. Ramalingam, wherein the Hon'ble Supreme Court has held as follows: 17. The High Court, in our opinion, should have kept in consideration the law laid down in this case while deciding the second appeal. (ii) 2011 (4) CTC 343 (H. Siddiqui (dead) by L.Rs vs. A. Ramalingam, wherein the Hon'ble Supreme Court has held as follows: 17. The High Court failed to realise that it was deciding the First Appeal and that it had to be decided strictly in adherence with the provisions contained in Order XLI Rule 31 of the Code of Civil Procedure, 1908 (hereinafter called CPC) and once the issue of alleged power of attorney was also raised as is evident from the point (a) formulated by the High Court, the Court should not have proceeded to point (b) without dealing with the relevant issues involved in the case, particularly, as to whether the power of attorney had been executed by the respondent in favour of his brother enabling him to alienate his share in the property. (iii) 2008 (1) CTC 778 (Union of India and another vs. Ranchod and Others), wherein the Hon'ble Supreme Court has held as follows: 6. Order XLI CPC deals with appeals from original decrees. Order XLI Rule 31 lays down that the judgment of the appellate court shall be in writing and shall state (a) the points for determination, (b) the decision thereon (c) the reasons for the decision and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. This provision has come up for consideration in innumerable occasions and its meaning and scope has been explained. It is not necessary for us to refer to various decisions but we will refer to one of the recent judgments given in G. Amalorpavam and Ors. v. R.C. Diocese of Madurai, (2006) 3 SCC 224 , wherein this Court observed as under:- "The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the higher appellate court is in a position to ascertain the findings of the lower appellate court. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the higher appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court having considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and, if so considered appropriate and so advised, to avail the remedy of second appeal conferred by Section 100 CPC." In Girja Nandini Devi v. Bijendra Narain Choudhury, AIR (1967) SC 1124, an observation was made that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. (iv) 1978 (1) 505 (C.V. Ramaswami Naidu and Others vs. C.S. Shyamala Devi and Others), wherein the Division Bench of this Court has held as follows: Co-ownership is a relationship which springs and slopes from consensus and contract. Legislation has only imprinted on the concept of co-ownership certain rights which have a supervening effect which are declaratory of the rights inter se as between co-owners. The legal relationship is always knitted in a framework of jointness and no one therein can predicate with certainty as to what portion of the property held in common is his; and an element of inseparability is inhered in the doctrine of co-ownership. What can be predicated by reason of Section 45 of the Transfer of Property Act and by invoking the principle of quasi trust in the Indian Trusts Act is the quantum of rights of such co-owners in the entirety of the property. Such quantification of rights of each of the co-owners in a given property depends on the facts and circumstances of each case. It is for the purpose of providing a just rule for weighing and appreciating the value or interest of a co-owner in joint property that the rule of equity is evolved in Section 45 of the Transfer of Property Act. (v) AIR 1979 Orissa 162 (Debaraj Pradhan and Others vs. Ghanshyam and another), wherein the High Court of Orissa has held as follows: 8. Section 45 of the T. P. Act provides :- "........ In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property." This being the legal position, if the plaintiff could not establish as to what was the fund out of which the consideration money had been paid, and what share in that fund each of the parties had, the legal presumption has to work. (vi) 2007 (4) MLJ 787 (B.K. Subramania Sah (died) and Others vs. B.S. Ramachandran and others), wherein this court has held as follows: 23. (vi) 2007 (4) MLJ 787 (B.K. Subramania Sah (died) and Others vs. B.S. Ramachandran and others), wherein this court has held as follows: 23. Learned counsel for the defendant submitted that even after the purchase of suit property, which was by then a ground floor, the defendant had improved it by raising first floor and second floor and the plaintiff failed to prove the contribution made for the improvement. Although plaintiff had mentioned that he also contributed for the first and second floor of the suit property, absolutely there is no proof for the same. So, the plaintiff will be entitled to 3/4th share in the ground floor. In so far as that there is acquiescence against the construction of father in the first and second floor, the plaintiff may not make a claim. (vii) Vol. 90. L.W 531 (S. Palanivelu vs. K. Varadammal), wherein this Court held as follows: In the present case also, as already stated, the respondent has not done anything when the appellant was putting up a portion of his main building on a portion of the trespassed property and sinking a major portion of the well and doing other acts on the trespassed property. The appellant could not have done these things in a hurry. They must have taken several months for the appellant to complete the things which he had done on the property. The respondent had not disclosed these things in the plaint and has not prayed for a mandatory injunction for the removal of the structures put up by the appellant on the trespassed portion of the suit property. The court would therefore be justified in inferring acquiescence on the part of the respondent; I consider that this is not a case for directing delivery of possession of the trespassed portion to the respondent. But this is a case where the respondent has to be compensated in money for the value of the trespassed portion. (viii) Vol. 86 Law Weekly 462 (Guruswami Asari and others vs. Raju Asari (died) and others), wherein this Court has held as follows: 12. Mr. But this is a case where the respondent has to be compensated in money for the value of the trespassed portion. (viii) Vol. 86 Law Weekly 462 (Guruswami Asari and others vs. Raju Asari (died) and others), wherein this Court has held as follows: 12. Mr. D.C. Krishnamurthi, the learned counsel for the second defendant contended before me that the only method known to law for becoming a co-owner was as contemplated by S. 45 of the Transfer of Property Act, and that the provisions of that section not being applicable to the present case the appellants herein could not institute the present suit for partition as if they were co-owners along with the second defendant. I am unable to agree with this contention. Section 45 of the Transfer of Property Act has a limited operation. All that the section says is that, where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are in the absence of a contract to the contrary, respectively entitled to interests in such property identical as nearly as may be, with the interests to which they were respectively entitled in the fund; and where such consideration is paid out of separate funds belonging to them respectively they are in the absence of a contract to the contrary respectively entitled to interest in such property in proportion to the shares of the consideration which they respectively advanced. Thus it will be seen that Section 45 only states that the interest inter se as between the several joint purchasers of an immovable property will subject to contract between them, be in the proportion in which they were entitled to the consideration for the purchase and has nothing whatever to do with the method of creating common ownership or the manner, in which several persons can become common owners in respect of a single item of property. (ix) AIR 1982 Allahabad 273 (Mohan Lal vs. Board of Revenue, U.P., Allahabad and others), wherein the Allahabad High Court held as follows: 10. On the finding of fact recorded by the first two courts that the plaintiff had contributed to the extent of Rs. (ix) AIR 1982 Allahabad 273 (Mohan Lal vs. Board of Revenue, U.P., Allahabad and others), wherein the Allahabad High Court held as follows: 10. On the finding of fact recorded by the first two courts that the plaintiff had contributed to the extent of Rs. 1,000/- in the sale consideration, it appears that he is entitled to half share in the disputed property in view of the underlined portion of the provisions of Section 45, T.P. Act. The second appellate court appears to have failed to notice the aforesaid provision, hence it is necessary that its judgment should he quashed and the second appellate court should be asked to re-examine the claims of the parties. 15. Countering the submissions made by the learned counsel for the appellant, Mr. K.A. Ravindran, learned counsel appearing for the respondents in the Second Appeal and the petitioner in the Civil Revision Petition, submitted that the lower appellate court has rightly reversed the findings of the trial court and passed a preliminary decree, taking into consideration the oral and documentary evidences, let in by the parties. Further, the learned counsel submitted that the lower appellate court had framed relevant point for consideration with regard to the grant of decree for partition. The learned counsel further submitted that in the suit for claiming mesne profits, when the plaintiff is entitled to partition, the Courts below should have granted mesne profits to him. In support of his contention, the learned counsel relied on the following judgments: (i) 2016 (3) CTC 651 (Deccan Chronicle Holdings Ltd vs. Yes Bank Limited and Ors.), wherein the Division Bench of this Court held as follows: 10. The sale deeds executed contain an identical clause of handing over possession. We are of the view that once the sale deed is executed and registered, nothing contrary can be pleaded to what is already being specified therein in view of Section 92 of the Indian Evidence Act, 1872. Thus, even the story of possession being retained by the plaintiff does not hold good and is an endeavour to create a question mark on the possession issue of the property even when the sale deed has specified to the contrary. (ii) In AIR 1987 Madras 24 (P. Kaliappa Gounder and others vs. Muthuswami Mudaliar), wherein the Division Bench of this Court has held as follows: 8. (ii) In AIR 1987 Madras 24 (P. Kaliappa Gounder and others vs. Muthuswami Mudaliar), wherein the Division Bench of this Court has held as follows: 8. Partition is the intentional severance of the joint ownership by an unequivocal expression of an intention to bring out severance in the eye of law and further implementing it by actual division by metes and bounds. What was held in common as a single property gets converted into a holding in severalty and in specie. Joint ownership turns into ownership in severalty and in specie. It is true that partition is not a transfer. But there must be the element of conversion as the joint ownership into ownership in severalty and in specie. Therefore, the essence of partition is that the joint ownership is put an end to and the joint owners come to hold the property in severalty and each in his own individual right. In this country, it is common that not only coparceners of a joint Hindu family but also individuals join or continue together to own property in common. If this common ownership is to be put an end to not only in theory but also in practice, there must be primarily severance of the joint ownership in the eye of law, followed up by actual physical division. We make it clear that in the present case, we are not concerned with the concept of a bare unequivocal expression of an intention to separate to bring about a division in status in a joint Hindu family. It is not unusual for parties holding properties jointly or in common to have separate enjoyment of portions for the sake of sheer convenience. But such separate enjoyment of convenience cannot be equated to partition in the eye of law and in fact, so as to say that the joint ownership has been put an end to and in its place ownership in severalty or in specie has come into existence. Separate enjoyment for the sake of convenience is one thing and partition in the eye of law is another. The latter carried with it the legal incidents of mutating the joint ownership. The latter has to pass through and satisfy a more rigorous test in law and on facts. Separate enjoyment for the sake of convenience is one thing and partition in the eye of law is another. The latter carried with it the legal incidents of mutating the joint ownership. The latter has to pass through and satisfy a more rigorous test in law and on facts. (iii) 1973 II MLJ 203 (Guruswami Asari and others vs. Raju Asari (died) and Others) which was also relied upon by the learned counsel for the appellant cited supra. (iv) AIR (33) 1946 Lahore 399 (Nanek (deceased) Represented by Umra and Others vs. Ahmad Ali) wherein the Full Bench held that under Sec.45 of the Transfer of Property Act, if two persons purchased a property and if their shares are not specified in the sale deed, they must be presumed to have purchased in equal shares. (v) An unreported judgment of Allahabad High Court dated 17.12.2012 made in S.A. No. 538 of 2003, wherein, the Allahabad High Court held as follows: 8. Section 45 covers three eventualities: (1) Where a transfer of property in favour of two or more persons takes place and the consideration is paid out of common fund, then in the absence of contract to the contrary, the interest in the property would be identical as nearly as may be, with the interest to which they were respectively entitled in the fund. (2) Where consideration is paid out of separate funds in the absence of a contract to the contrary, the interest in the property would be proportionate to the share of the consideration, respectively advanced. (3) In the absence of evidence as to the interest in the fund, or as to the share, respectively advanced, such persons shall be presumed to be equally interested in the property; 9. The rationale of Section 45 of the Act appears to be that in the absence of contract to the contrary, it is the extent of contribution, which determines the extent of share of the property purchased: 16. Thus, for the purposes of the present case, it is the third part of Section 45 of the Act, which would be attracted i.e., where there is no evidence of the interest of fund or the share respectively advanced, then a presumption arises that such persons are owners of equal share. 16. Thus, for the purposes of the present case, it is the third part of Section 45 of the Act, which would be attracted i.e., where there is no evidence of the interest of fund or the share respectively advanced, then a presumption arises that such persons are owners of equal share. 16. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side and also the judgments relied on by the learned counsel on either side, it could be seen that the plaintiff and the defendants 1 and 2 are brothers. The suit property was purchased in the name of all the three brothers, under Ex.A.1 Sale Deed dated 21.11.1960. After their purchase, the superstructure, which was in existence in the suit property, was demolished and a new building was constructed. 17. It is also not in dispute that the first defendant is residing in the suit property. It is also not in dispute that the plaintiff was a minor at the time of the purchase of the property. The suit property originally belonged to the father of the plaintiff and the defendants 1 and 2 viz., late Ayyaswamy Asari. The property was sold in a court auction to one Kaliappa Gounder. The suit property was purchased from the said Kaliappa Gounder. 18. It is the case of the defendants that the plaintiff did not contribute any money for the purchase of the suit property and for putting up the construction in the suit property. It was also contended by the defendants 1 and 2 that there was oral partition in the year 1994, wherein, the first defendant was allotted a house, bearing Door No. 13/6; the second defendant was allotted a house, bearing Door No. 13/6A and a house was allotted to the plaintiff however, no door number was assigned at that time. 19. The plaintiff contended that his father had contributed money for the purchase of the suit property, since he was a minor. Further, the plaintiff contended that the first defendant acted as his guardian for the purchase of the suit property. 20. 19. The plaintiff contended that his father had contributed money for the purchase of the suit property, since he was a minor. Further, the plaintiff contended that the first defendant acted as his guardian for the purchase of the suit property. 20. However, on a perusal of Ex.A.1 Sale deed, it could be seen that there is no recital in the said document to the effect that the defendants 1 and 2 had purchased the property out of their own funds and that the plaintiff, who was a minor at that time did not contribute any money at that time for the purchase of the property. When the plaintiff had not contributed any money for the purchase of the property under Ex.A.1 Sale deed, the necessity for making him a party in the sale deed was not explained by the defendants 1 and 2. If the defendants 1 and 2 alone had purchased the property, there is no necessity for making the plaintiff as a party in the sale deed. The defendants contended that there was an oral partition in the year 1994 and the property bearing Door Nos. 13/6 and 13/6A were allotted to the defendants 1 and 2. Therefore, when the defendants contended that there was oral partition and the suit property was allotted to them, the burden of proof with regard to the alleged oral partition in the year 1994 lies on the defendants. If the contention of the defendants that the plaintiff has no right in the suit property for the reason that he did not contribute any money for the purchase of the suit property is accepted, then there is no necessity for orally partitioning the suit property between the defendants 1 and 2 in the year 1994. Even in the evidence of the defendants, they were not in a position to specifically say about the actual measurement of their share, which were alleged to have been allotted in their favour, in the oral partition, held in the year 1994. When the defendants are not in a position to say anything about the actual measurement, that was allotted to them in the alleged oral partition, the lower appellate court has rightly come to the conclusion that the oral partition cannot be a true one. That apart, the defendants have not examined any independent witness to prove the alleged oral partition. When the defendants are not in a position to say anything about the actual measurement, that was allotted to them in the alleged oral partition, the lower appellate court has rightly come to the conclusion that the oral partition cannot be a true one. That apart, the defendants have not examined any independent witness to prove the alleged oral partition. Even the defendants were not in a position to say with regard to the actual date and month of the alleged oral partition. The patta was issued in favour of all the three brothers. Ex.B.1 sanctioned plan was obtained in the name of the first defendant. On a perusal of Ex.B.1 plan, it could be seen that the Dvg Number has been mentioned as 156/1993 dated 17.12.1993. When the defendants contend that the oral partition took place in the year 1994, the reason for preparing the plan in the year 1993 itself was not explained by the defendants. The mentioning of the date as 17.12.1993 would establish that the alleged oral partition can only be a false contention, raised by the defendants. Since Ex.B.1 is prior to the alleged oral partition, it only falsifies the case of the defendants with regard to the alleged oral partition. 21. Under Ex.R.2 Tax Receipts, it could be seen that the tax receipts were issued in the name of the first respondent and his brothers and they were not issued in the individual names of the defendants 1 and 2. Ex.A.6 patta also stands in the name of the first defendant and brothers. When the property was purchased in the year 1960 jointly in the name of the plaintiff and the defendants 2 and 3 and also patta, water tax and electricity connection continue to stand in the name of the three brothers, the contention of the defendants 1 and 2 cannot be accepted. The defendants cannot set up a case contrary to the recitals found in Ex.A.1 sale deed, which is barred under Section 92 of the Indian Evidence Act. Since the defendants have failed to establish the alleged oral partition and in view of the recitals found in Ex.A.1 sale Deed, the plaintiff is entitled to 1/3 share in the suit property. The judgments relied upon by the learned counsel appearing for the respondents squarely applies to the facts and circumstances of the case. Since the defendants have failed to establish the alleged oral partition and in view of the recitals found in Ex.A.1 sale Deed, the plaintiff is entitled to 1/3 share in the suit property. The judgments relied upon by the learned counsel appearing for the respondents squarely applies to the facts and circumstances of the case. Though there is no dispute with regard to the ratio laid down in the judgments relied upon by the learned counsel for the appellants, since the facts and circumstances differs from the case on hand, they are not applicable to the present case. 22. So far as Order 41 Rule 31 of Civil Procedure is concerned, the lower appellate court had framed the relevant point for consideration with regard to the grant of preliminary decree for partition. Since the relevant point for consideration has been framed by the lower appellate Court and all the issues were also considered by the lower appellate court, the contentions raised by the learned counsel for the appellant, cannot stand. 23. With regard to the claim of mesne profits is concerned, in O.S. No. 499/2000, the courts below rejected the claim made by the plaintiff, finding that the plaintiff has not clarified how he claimed a sum of Rs.24,000/- as past mesne profits for three years. In the absence of any specific pleadings with regard to the arriving of the said amount, the courts below had rightly dismissed the suit. It is the duty of the plaintiff to plead and prove the actual income derived from the suit property by the defendants 1 and 2. Without giving any details, the plaintiff had claimed a sum of Rs.24,000/- towards past mesne profits. The plaintiff also admitted that the building was constructed subsequent to the purchase made by the plaintiff and the defendants 1 and 2. The plaintiff has not stated anything in the plaint with regard to the construction made in the suit property and also the rents collected from the suit property. In the absence of any evidence let in by the plaintiff, the suit filed by him, claiming mesne profits, was rightly dismissed by the courts below. 24. In these circumstances, the lower appellate courts have rightly passed a preliminary decree for partition in the appeal suit in A.S. No. 44 of 1999 and dismissed the suit in O.S. No. 493/2000. In the absence of any evidence let in by the plaintiff, the suit filed by him, claiming mesne profits, was rightly dismissed by the courts below. 24. In these circumstances, the lower appellate courts have rightly passed a preliminary decree for partition in the appeal suit in A.S. No. 44 of 1999 and dismissed the suit in O.S. No. 493/2000. Hence I do not find any ground much less any substantial question of law to interfere with the judgments and decrees of the lower appellate court. The Second Appeal as well as the Civil Revision Petition are liable to dismissed and accordingly, the same are dismissed. No costs.