ASHOK KUMAR SAXENA Vs. NARESH KUMAR GUPTA

JUDGEMENT

(1.) This is the Defendant's second appeal arising out of a suit for injunction restraining the Defendant from interfering in possession of the property, mentioned in the Schedule-'A' of the plaint.

(2.) The allegation made in the plaint by the Plaintiff's/Respondents is that house in dispute was orally partitioned between the Defendant/Appellant and his two real brothers Anil Kumar and Shushil Kumar Saxena, according to which north portion of the property, described in Schedule -Ka of the plaint, has fallen into the share of Shushil Kumar Saxena. It has been sold subsequently to the Plaintiff's vide registered sale-deed dated 30.5.1997 and possession of that has already been delivered to them. It was further alleged in the plaint that a stair case (Zina) had fallen into the share of Shushil Kumar Saxena, which also form part of the sale-deed. In respect of stair case, the Defendant was granted a licence for a period of 2-3 years, which has subsequently been revoked by a notice, but inspite of alleged revocation, the Defendant/Appellant did not stop using stair case, therefore, the Plaintiff's prayed for a decree of injunction against the Defendant restraining him from using the stair case and for delivery of possession of the portion on the first floor of the house.

(3.) The Defendant/Appellant filed a written statement denying the alleged partition as well as grant of licence. It was specifically pleaded that vide sale-deed dated 30.5.1997 an unpardoned share had been transferred by Shushil Kumar Saxena in favour of the Plaintiff's and parties were residing according to their convenience as co-sharer of the property. The Plaintiff's have brought on record an alleged partition deed dated 16.9.1996, as if the terms of the oral partition has been recorded in the said deed. According to the Appellant, the said document has completely been ignored by both the Courts on the ground that same was inadmissible in evidence, as such, alleged oral partition formed the basis of the decree impugned. The Plaintiff/ Respondent No. 1, who examined himself as PW-1, has admitted that the disputed stair case was the only stair case which was being used by the Defendant/Appellant since the purchase of the house. DW-1 has also been examined and he has denied the validity of the alleged partition deed dated 16.9.1996 and also the signature thereon.