VIJAY KUMAR Vs. KARAM CHAND SHARMA AND ORS

JUDGEMENT

(1.) For reasons mentioned in the application accompanied by affidavit, delay of 23 days in filing the appeal is condoned.

(2.) Defendant No. 1 Vijay Kumar having failed in both the courts below has approached this Court by way of instant second appeal.

(3.) Suit was filed by Respondent Nos. 1 to 4/Plaintiffs against Defendant No. 1-Appellant and against Respondents No. 5 to 7 as proforma Defendants No. 2 to 4. Appellant and Respondent No. 1 are real brothers whereas Respondents No. 2 to 7 are heirs of Amar Chand third brother of Appellant and Respondent No. 1. Plaintiffs alleged that all the three brothers purchased the suit land in equal shares vide various sale deeds. The property was orally partitioned between the parties and later on writings dated 2.12.1988 and 25.4.1993 were also executed. The parties were in possession as per oral partition but Defendant No. 1-Appellant tried to dispossess the Plaintiffs from their portions. Thereupon, Karam Chand Plaintiff No. 1 filed civil suit No. 286 of 19.6.1992 for injunction against Vijay Kumar Defendant No. 1-Appellant whereas Vijay Kumar filed suit against Karam Chand, Rani Sharma etc. bearing suit No. 482 of 17.5.1993. Vijay Kumar claimed exclusive ownership of the suit property. Both suits were decided by the trial court vide common judgment dated 9.12.2002 and the suit property was held to be joint of all the three brothers. Writing dated dated 2.12.1988 was held to be genuine but partition was not accepted being unregistered document. The suit filed by Karam Chand Plaintiff No. 1/Respondent No. 1 was dismissed whereas Defendant No. 1/Appellant's suit was decreed holding the property to be joint of all the three brothers. Claim of exclusive ownership of Defendant No. 1/Appellant over the suit property was negatived. In the instant suit, Plaintiffs sought partition of the suit land claiming 1/3rd share each for Plaintiff No. 1 and Defendant No. 1 and remaining 1/3rd share for heirs of Amar Chand since deceased.