JUDGMENT : In this second appeal, challenge is made to the Judgment and Decree dated 03.11.2010 passed in A.S.No.5 of 2009 on the file of the Subordinate Court, Perambalur, confirming the Judgment and Decree dated 20.03.2008 passed in O.S.No.258 of 2001 on the file of the District Munsif Court, Perambalur. 2. The second appeal has been admitted on the following substantial questions of law: “(1) Whether the Courts below are right in rejecting the claim of the plaintiff just because of its conclusion that the property was not divided from East to West.? (2) Whether the plaintiff has to lost his part of entitled share and title and right merely because the property was not partitioned as claimed by him in the direction as specified in his plaint.? (3) Whether the Courts below are justified in accepting the report of the Advocate Commissioner when its reports says the plaintiff occupies only 10 feet of land and when it failed to show the actual extent occupied by the defendants with its metes and bounds? (4) Whether the First Appellate Court is right in rejecting the plaintiff's plea of refusing to remand the matter for trial for examination of the concerned necessary witnesses especially when the rights and claims are in question?” 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. Suffice to state that the suit has been laid by the plaintiff for the reliefs of declaration and permanent injunction in respect of the A schedule property, for the reliefs of declaration and possession in respect of the B schedule property and for the relief of partition in respect of the C schedule property. 5. The materials placed on record go to show that the extent of 1.43 acres in survey No.300/7 originally belonged to the Plaintiff's paternal grandfather Muthusamy by way of a sale deed dated 07.09.1929, which document has come to be marked as Ex.A11. Muthusamy had three sons viz., Pachamuthu, the plaintiff's father, Poomalai and Kanjamalai. It is seen that both the parties agree that the abovesaid property belonging to Muthusamy acquired by way of Ex.A11 had been orally divided amongst his three sons and accordingly, his sons had been each allotted 1/3 share in the abovesaid extent. Muthusamy had three sons viz., Pachamuthu, the plaintiff's father, Poomalai and Kanjamalai. It is seen that both the parties agree that the abovesaid property belonging to Muthusamy acquired by way of Ex.A11 had been orally divided amongst his three sons and accordingly, his sons had been each allotted 1/3 share in the abovesaid extent. Now, according to the plaintiff, the three sons of Muthusamy had divided the abovesaid property East to West and accordingly, it is his case that the western share of 0.47 1/3 cents was allotted to his father, the middle portion was allotted to Kanchamalai and the eastern share was allotted to Poomalai. 6. Per contra, it is the case of the defendants that the extent of 1.43 acres of lands in survey No.300/7 was divided orally amongst the three sons of Muthusamy North to South and according to them, the northern share was allotted to Poomalai, the middle share was allotted to Kanjamalai and the southern share was allotted to the plaintiff's father, Pachamuthu. 7. Thus, it is found that the main issue between the parties is as regards the mode of division of the abovesaid extent of 1.43 acres of land in survey No.300/7 amongst the sons of Muthusamy, whether they had divided the same east to west as putforth by the plaintiff or North to South as putforth by the defendants. As rightly found by the Courts below, on a perusal of Ex.A11, it is seen that the extent of 1.43 acres of land in survey No.300/7 acquired by the plaintiff's paternal grandfather Muthusamy is not described by giving boundaries. Similarly, as regards the partition effected amongst the sons of Muthusamy, it is found that both the parties had pleaded that the said partition had been effected only orally. Accordingly, it is found that there could not be any document to evidence the abovesaid factum of partition. The only issue is whether they had divided the abovesaid property East to West or North to South. Now, according to the plaintiff's case as also admitted by the defendants, the plaintiff's mother had alienated half share of the property allotted to the plaintiff's father by way of a sale deed dated 24.06.1959 to the defendants' father, Arumugham which document has come to be marked as Ex.A3. Even in Ex.A3 the property alienated thereunder has not been described with the boundaries. Even in Ex.A3 the property alienated thereunder has not been described with the boundaries. Furthermore, on a perusal of Ex.A3, it reads as if the plaintiff's mother, on behalf of the plaintiff and his brother, had conveyed the undivided half share in the property lying in survey No.300/7 to the defendants' father. However, when according to the plaintiff's case as well as the defendants' case, the extent of 1.43 acres of land in survey No.300/7 had been orally divided amongst the three sons of Muthusamy, the recital containing in Ex.A3, as if the said extent had not been divided and the plaintiff's mother had conveyed half of the same in favour of the defendant's father by way of Ex.Ex.A3 cannot be readily accepted. By way of the same, it is found that as if the plaintiff's father had been allotted 0.71 = cents of land in survey No.300/7 and by way of Ex.A3, the plaintiff's mother is said to have alienated 0.36 cents of land to the defendants' father. However, when it is the case of both the parties that the three sons of Muthusamy had effected oral partition of the total extent of 1.43 acres of land in survey No.300/7 equally, each having been allotted 1/3 share, the argument putforth by the defendants that the Court should held that the plaintiff's mother had alienated 0.36 cents of land in survey No.300/7 to the defendants' father, as such, cannot be readily accepted. Therefore, it is seen that the three sons of Muthusamy had been each allotted only 1/3 share in the total extent of 1.43 acres of land, thereby, it is found that the plaintiff's father would have been allotted only 0.47 1/3 cents of land and out of the same, it is seen that the plaintiff's mother by way of Ex.A3 would have alienated 0.23 = cents of land to the defendants' father. Therefore, now, it has to be seen as to where the abovesaid 0.23 = cents of land alienated by the plaintiff's mother to the defendants' father lie. 8. The specific case of the plaintiff is that the three sons of Muthusamy had divided the property East to West. Per contra, the defendants' contended that they had divided the property North to South. 8. The specific case of the plaintiff is that the three sons of Muthusamy had divided the property East to West. Per contra, the defendants' contended that they had divided the property North to South. In such view of the matter, the plaintiff having come forward with the suit seeking the specific reliefs to the suit properties based on a particular set of facts projected by him and when the same are repudiated by the defendants tooth and nail, it is for the plaintiff to establish at the foremost that the extent of 1.43 acres of land had been divided amongst the three sons of Muthusamy East to West as put forth by him. Therefore, as rightly concluded by the Courts below, the plaintiff should have endeavoured to examine the persons, who had been associated with the abovesaid oral partition to hold or establish that the three sons of Muthusamy had divided the property East to West as projected by him. However, the plaintiff has not chosen to examine his paternal uncles or their family members to establish the factum of oral partition as projected by him. Accordingly, it is seen that the Courts below, rightly on noting that the plaintiff having failed to examine the persons who had knowledge about the partition, accordingly, are justified in drawing an adverse inference against the plaintiff. Furthermore, the materials placed on record go to show that the share allotted to Poomalai in the oral partition is stated to be alienated to Duraisamy by way of a sale deed dated 29.09.1967, which document has come to be marked as Ex.A4 and according to the plaintiff, Duraisamy, after enjoying the same, had alienated the said property in favour of the plaintiff by way of a sale deed dated 28.04.1971, which document has come to be marked as Ex.A5. Based on the boundary recitals contained in Ex.A5, on the strength of the description of the property comprised therein stated to be located to the east of Kanjamalai @ Chinnaiyan's share, by way of the same, it is found that the argument had been projected by the plaintiff that the three sons of Muthusamy should have divided the property only East to West as projected by the plaintiff. However, as rightly putforth by the defendants, the parent document i.e. Ex.A4 sale deed recites as if the property comprised therein is situated on the northern side. However, as rightly putforth by the defendants, the parent document i.e. Ex.A4 sale deed recites as if the property comprised therein is situated on the northern side. However, only in the subsequent sale deed i.e. Ex.A5 executed in favour of the plaintiff, the lie of the property has not been descried on the northern side and thus, when there are materials contradictions as regards the lie of the property covered under Exs.A4 & 5, though the property comprised in both the documents is the same, thus, it is found that as rightly determined by the Courts below, by way of Exs.A4 & A5, we cannot safely conclude that the property had been divided by the three sons of Muthusamy East to West as projected by the plaintiff. 9. As per the case of the plaintiff, it is seen that Duraisamy had purchased the share allotted to Poomalai and thereafter, the plaintiff is found to have obtained the said property from Duraisamy by way of Ex.A5. As abovenoted, the plaintiff has not chosen to examine Poomalai's family members to establish the factum of partition effected amongst the three sons of Muthusamy whether the same had been made East to West or North to South. Similarly, the plaintiff has not endeavoured to examine Duraisamy or his family members to establish the mode of division of the property by the three sons of Muthusamy. Therefore, when it is found that the plaintiff has not endeavoured to produce the best evidence available to establish the factum of partition effected amongst the three sons of Muthusamy and when there is no proper explanation offered by the plaintiff with reference to the same, as rightly found by the Courts below, the very factum of the mode of partition, which took place amongst the three sons of Muthusamy as having been effected only East to West not being established, it has not been explained as to how he could claim title to the suit property as described in the plaint. Furthermore, the enjoyment of the property by the three sons only as East to West, is not fortified by acceptable and reliable documents. 10. Some revenue documents have come to be projected by the plaintiff marked as Exs.A6 to A8, the FMB Sketch marked as Ex.A12, the joint patta marked as Exs.A13 to A15 and the FMB sketch marked as Ex.A16. 10. Some revenue documents have come to be projected by the plaintiff marked as Exs.A6 to A8, the FMB Sketch marked as Ex.A12, the joint patta marked as Exs.A13 to A15 and the FMB sketch marked as Ex.A16. As rightly analysed and found by the Courts below, the description of the properties as found in the FMB marked in the present case do not vouchsafe the mode of division of the property as East to West as projected by the plaintiff. Accordingly, the plaintiff had been forced to admit during the course of his evidence that in the FMB marked as Ex.A16, the division is not shown to have been effected East to West by the sons of Muthusmay. Equally, the other revenue documents also do not lend support to the plaintiff's case that the partition had been effected East to West and despite the same, it is seen that the plaintiff had chosen to mark the abovesaid documents. However, when they do not support the plaintiff's case of the partition i.e. the partition as having been effected East to West, it is found that the revenue documents also would not provide support to the plaintiff's case. Accordingly, it is found that considering the joint ownership of the extent of 1.43 acres of land in survey No.300/7 and the sub division effected thereafter in respect of the same, it is found that the plaintiff and others including the defendants had been given the joint patta, which had been exhibited in this matter. 11. The issue appears to be between the parties as regards the Well in the suit property. In this connection, it is found that the Advocate Commissioner had inspected the properties involved in the matter and filed his report and plan, which have come to be marked as Exs.C1 to C3, The plaintiff has not putforth any objection to the same. The issue appears to be between the parties as regards the Well in the suit property. In this connection, it is found that the Advocate Commissioner had inspected the properties involved in the matter and filed his report and plan, which have come to be marked as Exs.C1 to C3, The plaintiff has not putforth any objection to the same. Be that as it may, as rightly found by the Courts below, the Commissioner's report and plan would only go to show that the lie of the property is as per the revenue records projected in the matter and further as above seen, the revenue records projected in the matter do not point out the division of the property as East to West, accordingly, it is found that the Commissioner's report and plan also do not serve the case of the plaintiff's to hold that the property had been divided East to West as projected by him. 12. Now, according to the defendants, the plaintiff's father, on purchasing the property from the plaintiff's mother by way of Ex.A3, had dug a Well in the suit property and with a view to grab the same, the plaintiff had come forward with the suit suppressing the existence of the Well itself in the description of the suit properties given in the plaint. The plaintiff has not shown the existence of the Well in the suit property. It is not the case of the plaintiff that he had dug a Well in the property acquired by him from Duraisamy by way of Ex.A5. On the other hand, it has been admitted by the plaintiff himself that the Well available in the suit property had been dug only by the defendants. If really, the defendants' father or the defendants as the case may be had dug the Well in the property belonging to the plaintiff, as rightly determined by the Courts below, the plaintiff or his predecessor in interest would have putforth objection to the same and also would have taken necessary legal action against the defendants or their father with reference to the same. On the other hand, the plaintiff having admitted that the Well lying in the suit property had been dug by the defendants and he having not been raised his little finger resisting to the same, it has not been explained by the plaintiff as to how come, he could lay a claim of title to the Well available in the suit property. In this connection, it is found that even as per the case of the plaintiff, as regards the subject matter, complaining of encroachment by the defendants in respect of the B schedule property, it is found that the plaintiff has earlier laid the suit against them in O.S.No.560 of 1997. However, subsequently, it is also seen that the plaintiff had chosen to withdraw the said suit and laid the present suit. However, subsequently, it is also seen that the plaintiff had chosen to withdraw the said suit and laid the present suit. However, when the materials placed on record go to show clearly that it is only the defendants, who has been enjoying the B schedule property by digging a Well etc., and accordingly, the plaintiff also having not putforth any objection to the same or not having taken any legal action against the defendants with reference to the same, accordingly, it is found that the defendants had dug a Well only in the property acquired by way of Ex.A3 sale deed and accordingly, it is found that the property, in the possession and enjoyment of the defendants in the suit survey number had been subdivided in favour of the defendants as survey No.300/7b and in all, taking into consideration the abvoesaid factors, it is evident that the plaintiff, with a view to grab the property lying in the possession and enjoyment of the defendants including the Well, had chosen to lay the present suit with a false plea of partition having been effected amongst the three sons of Muthusamy as East to West with a view to grab the suit property, however, unable to establish the same and accordingly, the Courts below are found to be justified in all aspects in non suiting the plaintiff and therefore, I do not find any reason to interfere with the determination of the Courts below that the plaintiff has failed to establish the factum of partition of the extent of 1.43 acres of land in survey No.300/7 East to West and in such view of the matter, when the suit property described in the plaint is found to be based on the said mode of division and resultantly, the plaintiff having failed to establish his claim of title and possession and enjoyment or his claim of entitlement to recover the possession of the same having not been established, it is seen that the dismissal of the plaintiff's suit by the Courts below do not warrant any interference. 13. For the reasons aforestated, in my considered opinion, no substantial question of law is found to be involved in this second appeal. 13. For the reasons aforestated, in my considered opinion, no substantial question of law is found to be involved in this second appeal. In any event, the plaintiff having failed to establish that the property had been divided East to West and thereby, failed to establish the lie of the suit property with reference to which he seeks the various claims and also thereby endeavoured to grab the property in the possession of the defendants, which had been already conveyed to them by the plaintiff's mother by way of Ex.A3 and accordingly, it is found that the Courts below are justified in refusing to accept to the case of the plaintiff and the substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendants. In conclusion, the second appeal fails and accordingly, is dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.