Jai Bhagwan and Another vs Dilbag Singh and Others

Gurdev Singh, J.—The Appellants-Plaintiffs having lost in their suit for partition of three Gair Mumkin plots comprised in Khasra Nos. 70(1-14), 64(4-12) and 109(5-1) by means of metes and bounds before the trial court and the First Appellate Court, have come up with the present second appeal, which is directed against the judgments and decrees of those courts.

They pleaded in their plaint that they are co-sharers in the plots in dispute, which were inherited by them and Respondents-Defendants from their common ancestor Molar. Plaintiffs No. 1 and 2 have 3124/9215 share, Plaintiff No. 3 has 2717/9215, Defendants No. 1 to 5 have 1070/9215 share and Defendant No. 6 has 2304/9215 share in these plots. The Defendants are in possession in excess of their share. They requested them to get these plots partitioned by metes and bounds but they refused.

The suit of the Plaintiffs was resisted by the Defendants by filing joint written statement. They pleaded therein that these plots were partitioned about 35 years back soon after the consolidation and after that partition, they raised constructed on Plot No. 64 whereas the Plaintiffs raised construction on Plot No. 70. They are coming in possession of Plot No. 109 and have raised construction on some portion thereof. There was another joint plot bearing No. 176, which was sold by all the co-sharers. They also took up the plea that the suit of the Plaintiffs is bad for partial partition.

After the replication was filed by the Plaintiffs, following issues were framed by the learned trial court:

Whether the suit land is liable to be partitioned? OPP

If first issue is proved, whether the Plaintiffs are entitled for injunction as prayed for?OPP

Whether the suit land has already been partitioned. If so, its effect?OPD

Relief.

On the basis of the evidence produced by the parties, findings were recorded against the Plaintiffs and resultantly their suit was dismissed vide judgment and decree dated 6.6.2005. They preferred an appeal which was dismissed by Additional District Judge, Jhajjar, vide judgment and decree dated 8.1.2007.

I have heard counsel for both the sides.

It has been submitted by counsel for the Plaintiffs that the lower courts erred while coming to the conclusion that the plots in dispute already stands partitioned by metes and bounds. No such partition is reflected in the revenue record and in the absence of such an entry in the revenue record, the lower courts could not have taken cognizance thereof. It has wrongly been held by those courts that there are admissions made by the Plaintiffs during their cross examination that these plots already stands partitioned. Thus, the findings recorded by those courts are not only the result of misreading of the evidence but are perverse also.

On the other hand, it has been submitted by learned Counsel for the Defendants that the Defendants by producing cogent evidence proved on record that the plots were orally partitioned 35 years back and since then the parties are coming in possession of separate parcels thereof and have raised construction also. The lower courts did not commit any illegality while relying upon that oral evidence, in view of the admission made by the Plaintiffs during the cross examination that they have constructed independent houses in different plots in dispute. The Plaintiffs are seeking the partition of those plots which were not meant for agriculture and as such the non-making of entry about the oral partition in the revenue record has no effect on the merits of the case.

No doubt, the Plaintiffs tried to produce oral evidence that the plots are still joint between the parties and they also tendered in evidence the copy of the jamabandi where these plots are still recorded to be joint. However, the Defendants produced reliable evidence that oral partition had taken place between them and the Plaintiffs long long back and that parties have constructed their independent houses on those parcels of the plots which had fallen to their share. The Plaintiffs during their cross examination have admitted in so many words that independent houses were so constructed by them. Those admissions create confidence in the evidence produced by the Defendants regarding that oral partition. The lower courts did not commit any illegality while relying upon the oral evidence regarding that partition even in the absence of any entry to that effect in the revenue record as this partition did not relate to the agricultural land but was of the plots meant for other purposes. It cannot be said that the findings of the lower courts are the result of misreading of the evidence or in any way perverse.

No substantial question of law arises in this appeal and the same is dismissed accordingly.