KRISHNA PAL SINGH Vs. AKAL CHAND

JUDGEMENT

(1.) DEOKI Nandan, J. This is a defendants second appeal in a suit for partition. The appellants are respectively Krishna Pal Singh, defendant no. 3; Smt. Savitri Devi, Km Sushma, Km. Babli and Papoo, legal representatives of deceased Mahendra Pal Singh, defendant no. 4; and Jogendra Pal Singh, defendants no. 6. A cross objection filed by Ram Niwaz, defendant no. 1, on 15th March, 1974 was rejected by this Court's order dated 9th July, 1974 on account of insufficiency of Court fees. The land in suit appears to have been taken on lease on 19th February, 1951 jointly by the plaintiffs and the defendants from the then Zamindar before the abolition of Zamindari, but it appears that after the abolition of Zamindari, ihe parties obtained a Bhumidhari Sanad and became bhumidhars of the land. The plaintiffs claimed l/5th share in the land in suit. There are constructions-on the land which are in two parts; one towards north and the other towards-south. The land in between the two sets of constructions is vacant. The first defendant admitted the plaintiffs claim but pleaded that he had never refused to partition the property out of Court, and prayed that his l/5th share may also be separated. The second defendant also pleaded that his share in the land is 1/5 but said that he and the father of defendants nos. 3 to 6 who also had a l/5th share in the land, were close relations and they had jointly made constructions on the northern part of the land on their 2/5th share. The investment of the two- parties in those construction was equal. It was further pleaded that defendants nos. 2 to 6 were in possession of their portion of the land and the constructions raised by them, to the exclusion of the plaintiffs and 'the other defendants. There was no objection to the plaintiffs or the other defendants being given their share from the remaining southern portion of the land. Partition inter-se was also claimed by the second defendant from defendants nos. 3 to 6 in respect of the northern part of the land which was said to belong to them to the exclusion of the plaintiffs and the other defendants. In the alternative it was further pleaded that if the case so set up was not proved, the second defendant and defendants nos. 3 to 6 should be allowed their respective 1/5 share in the whole of the property. Defendants nos. 3 to 6 were the main contesting defendants. They pleaded that the names of defendants nos. 2 and 7 were fictitiously shown in the lease and that they the defendants nos. 3 to 6 were entitled to a 2/5 share. They further pleaded that there was a private partition of the land in the year 1957 when they the defendants nos. 3 to 6 were given a 2/5 share of the land on the northern side while defendant no. 8 was given his 1/5 share on the southern side, and the plaintiffs were given their 1/5 share adjoining to the share of defendant no. 8; and defendant no. 1 was given his 1/5 share adjoining the portion of defendants nos. 3 to 6; and that the parties were in separate possession of their respective shares so allotted to them at the said private partition. They further pleaded that they had some land towards the north apart from the land in suit; which they had added on the north of their 2/5 portion of the land in suit, The suit was said to be barred by previous partition and the construction on the northern portion of the land were stated to be the exclusive property of defendants nos. 3 to 6, and those on the southern side to be the exclusive property of defendant no. 8. Defendants nos. 7 and 8 supported defendants nos. 3 to 6. The plaintiffs filed an applica tion. The following were the issues on which the parties went to trial : "1. Whether the name of defendant nos. 2 and 7 in the patta and Sanad of the land were fictitious ?

(2.) WHETHER the land in dispute was partitioned in 1957 as alleged by defendants 3, 4 (Sic ).

(3.) ARE plaintiffs and defendants 1, 2 estopped as alleged in para 15 of the W. S. of defendant 3 ?