ARABPATI LAL Vs. RAJENDER & ORS.

JUDGEMENT

(1.) By this Regular First Appeal under section 96 of the Code of Civil Procedure, 1908 (CPC), the plaintiff impugns the Judgment of the Trial Court dated 16.08.2017 by which the trial court has dismissed the suit for partition filed by the appellant/plaintiff with respect to the property bearing no. WZ-1018C, Nangal Raya, Pankha Road, New Delhi on account of the fact that the trial court found that the partition of the suit property had already taken place in the year 1971 and each of the parties had constructed on their own portions and are enjoying the same since the year 1971.

(2.) The facts of the case are that the appellant/plaintiff pleaded that he along with his deceased brother Sh. Mohan Lal, the predecessor-in-interest of the respondents/defendants, purchased the suit property in terms of a registered Sale Deed dated 31.01.1970. It is pleaded that there was no partition between the appellant/plaintiff and his deceased brother, Sh. Mohan Lal, or their successors-in-interest being the respondents/defendants and since though requests for partition were made, the same was not agreed to, and thereafter the subject suit for partition was filed.

(3.) Respondents/Defendants contested the suit and pleaded that the suit property was already partitioned under an oral partition which took place between the appellant/plaintiff and his brother Sh. Mohan Lal in the year 1971. After the oral partition in the year 1971, the suit plot was divided in two parts, and these two separate parts have been constructed upon, by the respective parties, as regards their portions. Whereas the portion of the plot of the appellant/plaintiff was 54% of the total plot area, as it was the back portion of the plot, the brother, Sh. Mohan Lal/respondents/defendants had the front portion and therefore only had 46% of the total plot area. It was contended that Sh. Mohan Lal/respondents/defendants have constructed a building, to the extent of third floor, on their own portion of the plot, whereas the appellant/plaintiff had constructed on the plot till the second floor. It was prayed that the suit be dismissed.