MUNNI LAL Vs. NOMI

JUDGEMENT

(1.) THE present appeal arises out of the concurrent findings of facts recorded by the Court below.

(2.) THE appellant, as plaintiff filed a Civil Suit No. 418 -1 of 1998 before the Sub Judge 1st Class, Theog, Distt. Shimla, seeking a declaration and injunction and challenging the legality of the orders dated 5.3.1998 and 21.9.1998 passed by the Assistant Collector 1st Grade, Kotkhai, partitioning the suit premises owned by the parties, which was initially jointly owned and possessed by S/Shri Roop Dass and Kanahiya. As per the plaintiff, the said land was jointly owned by S/Shri Roop Dass and Kanahiya. Smt. Balnu inherited the estate of Shri Roop Dass, who gifted her share to S/Shri Gaya Nand, Udey Singh and Lachmi Nand. Shri Kanahiya gifted his share to the plaintiff vide Gift Deed dated 30.11.1979. An oral partition took place between the plaintiff and Gaya Nand and the parties came into separate possession of their respective shares and developed the land by planting an orchard thereupon. In the year 1983, Shri Gaya Nand sold the land to the defendants/present respondents.

(3.) WHETHER the suit has not been properly valued for the purposes of Court fee and jurisdiction, if so, what is the correct valuation? OPD 5. Relief. 4 Considering the material on record, the trial Court came to the conclusion that plea of oral partition had been negatived by the revenue authorities vide orders dated 5.3.1998 and 21.9.1998 and as per the copy of the jamabandi Ext.P -3 for the year 1991, the land continued to be shown as joint inter se between the parties. The presumption of truth as envisaged under Section 45 of the H.P. Land Revenue Act was not rebutted by the plaintiff and the plaintiff could not prove that the oral partition had actually taken place between the predecessors -in -interest of the parties. The Court found the plaintiff 'switnesses, plaintiff himself (PW -1), Nand Lal (PW -2) and Roshan Lal (PW -3) to be evasive. The plaintiff 'splea of private partition, which allegedly took place in the month of January, 1980 stood contradicted by the record Ext.D -4. In terms of Ext. D -4 copy of mutation, Smt. Balnu transferred her share in favour of Gaya Nand vide Gift Deed dated 2.2.1980. The mutation order is dated 11.2.1981. She had transferred her share as an owner, therefore, in this background, the plea of private partition stood negatived by the record.