Surinder Singh and another vs Nirmal Singh and others

Amit Rawal, J.(Oral) - C.M. No. 9886-C of 2015

For the reasons stated in the application, duly supported by an affidavit, delay of 16 days in re-filing the appeal is condoned.

C.M. stands disposed of.

RSA No. 4051 of 2015 (OandM) The appellant-defendants are aggrieved of the judgments and decrees of both the Courts below, whereby, suit for possession by way of partition and mandatory injunction, filed at the instance of the respondent-plaintiff, has been decreed.

Mr. Rajan Bansal, learned counsel appearing on behalf of the appellant-defendants submits that in the month of December, 1983 an oral partition had taken place, whereby, one plot was given to the plaintiff and this fact was admitted in the replication, thus, khata remains joint. However, the arrangement between the parties had been proved on record but this fact has not been noticed by both the Courts below. Exclusive possession of the property had been proved owing to partition, thus, prays for setting aside of the impugned judgments and decrees of the Courts below, much less, substantial question of law arises for adjudication of the present appeal.

I have heard learned counsel for the appellant-defendants and appraised the impugned judgments and decrees of both the Courts below.

I rely upon the findings rendered in the judgment of Full Bench of this Court in cases of Ram Chander v. Bhim Singh and others, 2008 (3), RCR (Civil) 685 and Rohtash Singh and another v. Ram Niwas and others, to contend that once khata remains joint, the property cannot be said to have been partitioned between the parties despite the fact that they are in exclusive possession. Adverse party cannot take the benefit of oral arrangement. Revenue record shows jointness amongst the parties and therefore, the Courts below rightly passed the preliminary decree of partition.

In view of the aforementioned observations, I do not intend to differ with the findings rendered by both the Courts below, which are based upon the appreciation of oral and documentary evidence, much less, no substantial question of law arises for determination of this Court.

Accordingly, the appeal is dismissed.