HARI RAM Vs. LALA OM PRAKASH

JUDGEMENT

(1.) Parties are real brothers. Plaintiff has through this suit sought partition of their father's property no. 1775, Kucha Lattu Shah, Dariba Kalan, Chandani Chowk, Delhi . Case of the plaintiff in brief is that the plaintiff after the death of his father who was absolute owner of the suit property, became the owner of the one half share along with the defendant who has also one half share in undivided property. Admittedly portion shown in mark yellow is in occupation of the defendant whereas the portion shown in green is in occupation of the plaintiff. Portion mark red is in common possession. According to the plaintiff the portion in his occupation does not comprise one half of the area in the said undivided property and since both of them are real brothers, he has requested the defendant to partition the said property by metes and bounds according to their respective shares but the defendant has not bothered to give heed to his requests. Rather the defendant is trying to sell his portion of the undivided share in the said property. The cause of action arose on 3.1.91 when the defendant refused to partition the suit property.

(2.) On the other hand defendant has pleaded that there had been an oral family settlement amongst the parties to the suit by virtue of which the plan Mark A is said to be the share of the defendant whereas plan Mark B fell the the share of the plaintiff. This family partition is stated to have taken place about 35 years back. According to the defendant the said partition has already been implemented in as much as both the parties are residing separately in their respective portion with separate water and electric connections and have been paying house tax separately by way of cheques to Municipal Corporation of Delhi. Both the parties have been carrying out minor and major construction and renovation in their respective portion from time to time. It is further averred that in view of the said implementation of the oral family settlement, the plaintiff is estopped from filing the present suit. Apart from this the suit is also barred by limitation as the defendant has been in exclusive possession of his one half share for the last 35 years and has been witnessing without objection the alteration, addition, construction and renovation in the portion in his possession. Besides this the defendant has taken objection that the suit is barred Under Order 2 Rule 2 CPC on account of failure of the plaintiff to seek similar relief in earlier suit which gave rise to the decision by way of Arbitrator. However, in the replication the plaintiff reiterated his averments and denied the oral family partition as alleged by the defendant . Admittedly, the earlier suit alleged by the defendant was with regard to the joint business of the parties and not regarding the suit property. The aforesaid pleadings gave rise to the following issues:-

(3.) In support of their respective claims, the plaintiff alone has examined himself as PW 1 whereas the defendant besides himself examined Raj Singh Bhola as DW 2. As is apparent the substantial issue that calls for determination is issue no.1 i.e. whether there was the oral partition of the suit property and the same has been acted upon or not. The remaining issues are legal issues and can be taken up at the outset. ISSUE NO. 2