DEOVANSH Vs. RAMLAKHAN

JUDGEMENT

(1.) This second appeal preferred by defendant No.1 was admitted for hearing by formulating the following substantial question of law: ? "Whether the findings recorded by the Courts below regarding prior partition of the suit property between the parties are perverse in view of the fact that the revenue holding are joint and separate cultivation of land are only a mode of enjoyment of the property?" [For the sake of convenience, parties hereinafter will be referred as per their status in the plaint before the trial Court.]

(2.) The suit property was originally held by Kanhaiyalal. The plaintiff is elder son and defendant No.1 was the younger son of Kanhaiyalal who died 50 years prior to the date of filing of suit i.e. 23?2?2004. Plaintiff Ramlakhan filed suit for declaration of title and permanent injunction stating inter alia that after death of their father Kanhaiyalal and in presence of their mother Leelavati, after the Holi festival, they have (he and his brother defendant No.1) partitioned the suit property orally between them and the property situated in Villages Parasdiha, Jamai, Bhesamunda and Dhondha fell in the share of the plaintiff, whereas the property situated in Villages Rampur and Bhulai fell in the share of defendant No.1, but defendant No.1 made an application for partition of land before the Tahsildar which necessitated the filing of suit for declaration of title and permanent injunction, as such, earlier partition has taken place 33 years prior to the date of filing of suit, therefore, he is the title holder and defendant No.1 - his brother cannot interfere which defendant No.1 refuted and claimed for partition and stated that earlier no partition has taken place and therefore the suit deserves to be dismissed.

(3.) The trial Court after appreciating oral and documentary evidence on record held that there is already prior partition took place between the parties (plaintiff and defendant No.1) in presence of their mother after death of their father Kanhaiyalal, as such, the plaintiff is in possession of the suit lands and house at Villages Parasdiha, Jamai, Bhesamunda and Dhondha, and defendant No.1 is in possession of the suit lands situated at Villages Rampur and Bhulai, and defendant No.1 is in possession of 15 acres of land more than the plaintiff. In other words, the plaintiff is in possession of 40 acres of land, whereas defendant No.1 is in possession of 55 acres of land.