NAIB SINGH Vs. AJAIB SINGH

JUDGEMENT

(1.) THE defendant has come up in Regular Second Appeal against the judgment and decree of the first Appellate Court reversing on appeal those of trial judge and decreeing the suits of the plaintiffs for separate possession by partition of the suit land.

(2.) THE facts :-The respondent (hereinafter referred to as the plaintiff) filed a suit for separate possession by partition of the suit land against the appellants (hereinafter referred to as the defendants ). The parties are brothers. One of their brothers Malkiat Singh had died prior to the filing of the suit and his estate was suceedad to by defendants No. 3 and 4. The plaintiff claimed that the suit land was inherited by the parties from their father in equal shares and he had 1 /6th share in the estate of his father. There was partial partition between the parties but the land comprised in Khewat No. 730, Khatauni No. 77 (sic), Khasra Nos. 214, 215, 352 and 353 continued to be joint property of the parties. The plaintiff moved the revenue officer for partition of the land. The application f or partition was declened on the ground that the plaintiff had not included the entire joint land in his petition for partition of the joint property and that some part of the land had ceased to be agricultural land since it had been partially built up He sought declarator that he was entitled to 1/6th share in the said land and he was entitled to separate possession by partition.

(3.) THE defendants contested the claim of the plaintiff and pleaded that an oral partition was effected and it was followed by a memorandum of partition duly drawn and there was no joint land.