Shubh Narayan Mathur vs Kailash Narayan Udawat and Others

Nisha Gupta, J.—This first appeal under Section 96 CPC has been filed against the judgment and decree dated 20.4.95 passed by Additional District Judge No. 1, Ajmer in Civil Suit No. 49/87 (181/87) whereby the suit for partition filed by the plaintiff -appellant has been dismissed.

The short facts of the case leading to filing of this appeal are that plaintiff appellant filed a civil suit for partition of the property No. 139/2010 situated at Civil Lines, Ajmer with the contention that it was ancestral property of their grand-father Fateh Lalji, their father Onkar Lal has also constructed a garrage and some other additional construction were also made there. Grand- father and father both expired and hence now the appellant plaintiff and defendants are entitled for equitable partition of the ancestral property and plaintiff appellant has claimed 1/6th share in the ancestral property. The respondents have denied the allegation and submitted that it the property of their father and in the life time of their father in 1951 it has been partitioned and additional constructions have been made by all the share holders which was never objected by the plaintiff appellant. The court below has held that the property is ancestral property but it was partitioned in 1951 and hence the suit for partition is not maintainable and suit has been dismissed, hence this appeal.

The contention of the appellant is that there is no evidence to show that the partition has taken place in 1951 and court below has relied upon the contradictory evidence and suit should have been decreed where a specific finding has been arrived at by the court below that appellant is having 1/6 share in the property. It has also been submitted that alleged partition has taken place in 1951 whereas map, Ex. 1 which has been submitted is of 1973. The Commissioner Report has not been considered. Partition has not been done. Land has not been partitioned and if any partition has been arrived at, it is unequal, hence the court below has erred in dismissing the suit whereas the contention of the respondent was that oral as well as documentary evidence has been submitted to show that the property has already been partitioned. There was a verbal partition between the parties which has been acted upon. All the heirs have taken their water and electric connection separately, house tax has been paid in their name and they are in possession of the partitioned shares. Oral partition has been acted upon and court below has rightly dismissed the suit.

Heard the learned counsel for the parties. No written submissions have been submitted by counsel for the appellant in spite of asking for the liberty. Perused the judgment and decree under appeal as well as the original record of the case.

The main issues are issue No. 2, 3 and 4. There is no dispute about the fact that all the share holders are in possession of the property and for which the plaintiff appellant himself has submitted map, Ex. 1 which shows the specific possession of the parties. The only contention of the appellant is that in 1951 or ever no partition has taken place between the parties or if courts come to the conclusion that ever partition has taken place between the parties it was unequal and land has not been partitioned.

It is not the case of the appellant before the court below that he wanted partition of the land. As per pleadings of the appellant himself, the property has been got constructed in the life time of his grandfather Fateh Lalji and further constructions have been made by his father Onkar Lal and hence it does not lie in the mouth of the appellant to say that the land should have been partitioned when admittedly construction has been raised on the land. The contention of the appellant is totally misconceived.

It has been objected that the contention of the respondents are inconsistent. They have pleaded that the partition has taken place in 1951 whereas map, Ex. A/1 has been prepared in 1973. Had the partition been taken place in 1951, there was no occasion in 1973 to prepare a map. The court below has considered the contention raised by the appellant and rightly has observed that partition has taken place between the parties in 1951 but to show the respective possession over the property of the share holders map, Ex. A/1 has been prepared in 1973 which has been signed by respondents. Apart from it, Ex. A/12 affidavit has been submitted by the father of the parties Onkar Lal in which also respective shares of the parties has been identified. There was no reason to disbelieve the Ex. A/12, affidavit filed by the father of the parties and apart from it, Ex. A/13 form filled before the Land Building Taxes Department, the plaintiff himself has admitted that he is in possession of the part of the property area of which is 979 Sq. feet. Ex. A/13 is admission on behalf of the appellant.

The court below has also considered the attending circumstances that house tax has been deposited in the name of respective share holders and all the shares holders have taken water, electric connection in their name. It has been objected that permission for construction has been obtained in the name of Onkar Lal which shows that property has not been partitioned for which it has been rightly explained that as the property was in the name of Onkar Lal construction by permission has also been granted in his name only. The court below has considered the documentary evidence as well as the oral evidence. Apart from it, the appellant himself has admitted that he was also in possession of one room and one latrine on ground floor; two rooms and one kitchen and open space on first floor and thereafter he constructed two rooms and one kitchen on first floor and also one room at ground floor which clearly shows that partition arrived at between the parties has been acted upon by all the share holders and fact has also been admitted by the appellant himself.

In the light of the above, the court below has rightly held that property has already been partitioned and now it could not be again subject for partition and issues are rightly decided against the appellant.

Much has been said that Commissioner Report has not been considered as regards the fact of possession of shareholders over the property. Fact of possession is not relevant while deciding respective shares of the parties in ancestral or undivided property and here in the present case when property has already been partitioned, parties are living in their respective shares, Commissioner Report has no significance. This was not the case of the plaintiff appellant in the original suit that partition was unequal and court below has rightly dismissed the suit. There is no illegality or perversity in the findings of the court below. No interference is needed.

The appeal is dismissed.