AMAR NATH Vs. CHET RAM

JUDGEMENT

(1.) For the reasons mentioned therein, the application for condonation of 237 days delay in refiling the appeal is allowed. RSA-1265-2020

(2.) The present appeal has been preferred by the plaintiff- appellants against the judgment and decree dtd. 15/3/2016 passed by the Trial Court and the judgment and decree dtd. 17/9/2018 passed by the First Appellate Court dismissing the suit filed by the plaintiff-appellants.

(3.) The brief facts relevant to the present lis are that the plaintiff- appellants filed a suit for partition of the suit land averring that the parties are co-sharers and that the suit land had not been partitioned so far. The plaintiff-appellants have 1/3rd share but they are unable to use their share without getting the same partitioned. The defendant-respondents had assured to give the possession of the suit land to the extent of the share of the plaintiff-appellants but had now refused. Hence, the suit. The defendant- respondent No. 1(a) filed his written statement taking the stand that the suit was not maintainable as samadhis of their ancestors are existing on the suit land and therefore the suit land was not partible. There was a temple of God Shiva and samadhis of ancestors on the suit land and that digging or raising construction on the same was religiously and socially banned. It was further stated that the joint property had already been partitioned by the parties and all the parties are residing separately. The defendant-respondent Nos. 2, 3, 6 and 7 in their written statement raised preliminary objections regarding maintainability, concealment of material facts, property being already partitioned, etc. On merits it was stated that the suit land was the common property of the ancestors of the parties and had been partitioned about 40 years ago. All the parties were in possession of their respective shares and the suit land was kept common for the purpose of temple and samadhi etc. and it was decided by the ancestors of the parties that the suit land will not be partitioned in future. Defendant-respondent No. 9 in his written statement stated that he had no objection to the suit land being partitioned. In the replication the contents of the written statements were denied and those of the plaint were reiterated.