LALA OM PRAKASH Vs. HARI RAM

JUDGEMENT

(1.) Aggrieved by the order passed by the learned Single Judge dated 25th April, 2003, inter alia, holding that there was no oral partition of the suit property and the respondent was not estopped from filing the suit because parties were living in the suit property for more than 30 years, a preliminary decree for partition of the suit property was passed. A local commissioner was appointed to suggest the mode of partition in equal shares.

(2.) Mr. Pramod Aggarwala, learned Counsel appearing for the appellant, has contended that the impugned judgment is based on conjectures and surmises and the observation in the impugned judgment is beyond the pleadings and the evidence on record. It was contended before us that when pursuant to the oral agreement between the parties, parties have acted upon the said oral agreement and living separately in specific portions in the said property for more than 30 years, the property stands partitioned and nothing more was required to be done. It was contended that the oral partition has to be given effect to partition of the property and the same was legally enforceable. It was contended that for such a long period, both the parties were living in their respective portions as independent owners. It was contended by the learned Counsel for the appellant that the finding of the learned Single Judge that in view of the common staircase and common entrance, no oral agreement had arrived at, is based on surmises and conjectures. What was contended before us is that in a property even if there is a common entrance and staircase, yet it is feasible and possible to have separate partitioned portions. It was further argued that law does not require that property has to be divided in one single unit each. It was further contended that construction, renovation and alteration carried out by both the parties in the property was in their respective independent partitioned portions. On the basis of said pleadings and the evidence led by the parties, it could not have been inferred that there was no oral partition between the parties and the same was not given effect to. It was vehemently contended by Mr. Pramod Aggarwala before us that the finding of the learned Single Judge suffers from infirmity in so far as it has been held in the impugned order that the arrangement was on account of love and affection between the parties. Learned Counsel for the appellant took pain in inviting our attention to the testimony of respondent, Om Prakash, DW1 and DW-2, Raj Singh Bhalla. Mr. Pramod Aggarwala, relying on Black's Law Dictionary, says that the definition of 'metes and bounds' is:

(3.) On the basis of the aforesaid definition, it was contended that when pursuant to the oral agreement the parties have been living in their respective portion, no further partition is necessary. Reliance was also placed by the learned Counsel for the appellant on Kale and Ors. v. Deputy Director of Consolidation and Ors., 1976 (3) SCC 119 and it was contended that both the parties who have been living together in a specific portion and have been benefited under the oral agreement are precluded from assailing it. Reliance was placed by the learned Counsel for the appellant on the observation of the said judgment which is reproduced as under: