BANARSI DEVI Vs. VEERA DEVI

JUDGEMENT

(1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') preferred by one Banarsi Dass against the concurrent findings of facts recorded by both the Courts below holding that he is not entitled to partition of the suit property by way of separate possession because the partition had already taken place during the life time of the father of the plaintiff-appellant as well as defendant-respondents. It has also been held that on the basis of partition which has taken place during the life time of Balaki Ram their father, the parties are in separate possession of their respective shares.

(2.) THE plaintiff-appellant instituted Civil Suit No. 253 of 1994 on 12.8.1994 against the defendant-respondents for partition by way of separate possession in respect of the suit property. The property was owned by Balaki Ram, father of the plaintiff-appellant as well as defendant-respondents. It has been averred by the plaintiff-appellant that two properties purchased by his father were the self acquired properties. His father died intestate in the year 1979. Therefore, it was to be inherited by all his heirs, namely, five sons who are plaintiff-appellants and defendant-respondents and two daughters who are defendant-respondents 11 and 12. Equal share in the properties in respect of all the sons and daughters has been claimed alleging that all of them are still cosharers as the partition of above said properties has not taken place and the defendant-respondents are in possession of more than their share.

(3.) I have heard Mr. Puneet Jindal, learned counsel for the plaintiff- appellant who has argued that an admission made by a party in the written statement can be explained by adducing evidence that it was erroneous. According to the learned counsel in paragraph 2 of the plaint filed by Rattan Lal defendant-respondent, it was merely averred that a family settlement has taken place and no mention was made of any family partition. The learned counsel submitted that in law the concept of family partition is entirely different than the family settlement because the former result into binding legal consequences. Another submission made by the learned counsel is that once jointness of rights with other cosharers is shown, then no family partition could be inferred. For the aforementioned submission, the learned counsel has placed reliance on a judgment of Orissa High Court in the case of Brajananda Pradhan v. Sachidananda Pradhan and others, AIR 1990 Orissa 29.