Shanti and Another vs Ram Avtar and Others

L.N. Mittal, J.—This is second appeal by plaintiffs who were successful in the trial court but have been non-suited by the lower appellate court.

Ram Kumar, Girwar and Ishwar were three brothers. Plaintiffs are widow and daughter of Ram Kumar. Girwar and Ishwar were the two defendants. Girwar has since died and is represented by respondents No. 1 to 4 as his legal representative whereas Ishwar defendant No. 2 is respondent No. 5. All the three brothers had 1/3rd share in the suit property i.e. land measuring 2 kanals 12 marlas comprised of plot Nos. 419(1-6) and 422 (1-6); one house measuring 195 square yards and one Nohra measuring 151 square yards. The plaintiffs who are successors in interest of Ram Kumar had 1/3rd share in the suit property.

In the suit, the plaintiffs alleged that the suit property is still joint. No partition ever took place. Accordingly, the plaintiffs sought partition of the suit property.

The defendants, inter alia, pleaded that the suit property already stands partitioned and in the said partition, plaintiffs were given the disputed house and the Nohra and also 295 square yards eastern portion of plot No. 422 whereas remaining portion of plot No. 422 and the entire plot No. 419 fell to the share of the defendants. Memorandum of partition was also recorded in the year 1992. Since then the parties are in separate possession of their respective portions.

Learned Additional Civil Judge (Senior Division), Charkhi Dadri vide judgment and decree dated 2.2.2005 decreed the plaintiffs'' suit and passed preliminary decree of partition. However, first appeal preferred by the defendants has been allowed by learned District Judge, Bhiwani vide judgment and decree dated 28.4.2008 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, the plaintiffs have preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

It is undisputed that document dated 9.4.1992 Ex. D1 was executed by plaintiff No. 1 and both the original defendants Girwar and Ishwar. The said document was also signed by Dharamvir husband of plaintiff No. 2. The document was also witnessed by Sarpanch and other villagers including brother of plaintiff No. 1. According to this document, plaintiffs were given house, Nohra and 295 square yards eastern portion of plot No. 422 whereas remaining suit property i.e. remaining portion of plot No. 422 and the entire plot No. 419 were given to both the defendants. Out of total area of suit property being 1919 square yards, the plaintiffs who had 1/3rd share were given 639 square yards and both the defendants were given 1280 square yards. The partition was, thus, very fair and the plaintiffs were given area equal to their 1/3rd share and since then the parties are in possession of their respective portions. They have even raised construction thereon.

Learned Counsel for the appellants raised a technical objection that plaintiff No. 2 is not a party to the said partition effected vide document Ex. D1 and therefore, the said partition is not binding on plaintiff No. 2. The contention appears to be attractive on first blush but the same cannot be accepted being devoid of merit. It is correct that Ex. D1 has not been signed by plaintiff No. 2. However, the said document has been thumb marked by plaintiff No. 1 and has been signed by husband of plaintiff No. 2. It is correct that Dharamvir was not power of attorney holder of plaintiff No. 2 at the time said document was executed. However, the said document was thumb marked by plaintiff No. 1 who is mother of plaintiff No. 2 and has also been signed by husband of plaintiff No. 2 herself and by brother of plaintiff No. 1 and the consequent partition has even been accepted and acted upon. Therefore, it cannot be said that there was no mutual partition between the parties, merely because this document has not been signed by plaintiff No. 2. Interest of both the plaintiffs inter-se is common. They have filed the instant suit jointly. Husband of plaintiff No. 2 has appeared as witness being attorney of both the plaintiffs. Even if there was no formal document like power of attorney by plaintiff No. 2 in favour of her husband, it is manifest from the act and conduct of the plaintiffs that aforesaid partition was effected on behalf of plaintiff No. 2 as well and was accepted on her behalf by her mother as well as by her husband and maternal uncle. Moreover, very fact that the parties acted upon the said partition would further depict that plaintiff No. 2 was also agreeable to the said partition. The aforesaid partition is also very fair as the plaintiffs were given land according to their 1/3rd share.

In view of the aforesaid, the finding of the lower appellate court that partition had been effected between the parties does not suffer from any illegality or perversity so as to warrant interference in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. It stands established that there was valid mutual partition between the parties and the same was even acted upon. The appeal is, thus, without any merit and is accordingly dismissed.