OM PARKASH Vs. MISRI DEVI

JUDGEMENT

(1.) Admittedly Chhajju Ram owned the house in dispute, who died in 1962. His brother's widow and two sons of his brother filed suit for partition of that house against Om Parkash son of the first plaintiff and brother of the other two plaintiffs for separate possession of 3/4th share. Om Parkash pleaded that he was the adopted son of Chhajju Ram and was the sole owner and disputed the locus standi of the plaintiffs to claim share or partition therein. The Courts below have found that Om Parkash was not proved to be the adopted son. Accordingly, it was held that the parties had 1/4th share each and granted the decree for partition as prayed for. This is second appeal by Om Parkash.

(2.) At the time of motion hearing, it was urged that Smt. Misri Devi had filed an affidavit on the record in which she admitted that Om Parkash had half share in the house and notice of motion was issued.

(3.) It transpired later that the affidavit was not on the record and Om Parkash had to file an application under Order 41, Rule 27 of the Code of Civil Proceduce to produce the affidavit by way of additional evidence. In view of the affidavit it is urged by Shri Sarin that even if Om Parkash is not held to be the adopted son, it should be held that he has half share.