HARI SHANKAR SHARMA Vs. PURAN SINGH

JUDGEMENT

(1.) The defendant-appellant has preferred this Civil First Appeal against the judgment and preliminary decree dated 12.8.1994 passed by the Additional District Judge No.1, Bharatpur in Regular Civil Suit No.80/93 (122/88) whereby the partition suit filed by plaintiff-respondents has been decreed.

(2.) It is an admitted fact that the property in dispute originally belonged to common ancestor of the parties and, therefore, it was a coparcenary Hindu Undivided Family property. The disputed property consists of three different properties, the first being in the form of house property, the second a shop and the third property is in the form of "Bagichi" consisting of open land and a 'Shivalaya' situated on it. The appellant-Hari Shankar who died during the pendency of this appeal and plaintiff-respondents-Shri Puran Singh and Prem Nidhi are brothers, whereas rest of the respondents are their sisters. It is also an admitted fact that property Nos.2 and 3 as described above are not partitioned at any point of time. The case of the plaintiff-respondents was that all the properties are still undivided and belong to the joint hindu family and, therefore, are liable to be partitioned equally between all three brothers, whereas the contention of the defendant-appellant was that the property No.1 i.e. house property was divided in the year 1966 by the father of the parties in his life time and the portion of this property in which the plaintiffs and some tenants are residing came into the share of father of the parties and plaintiff whereas the open land situated adjacent to the constructed portion of this property exclusively came into the share of defendant-appellant and he by his own earnings, constructed a house upon that land and therefore, that portion of the property exclusively belongs to him. It was also contended by the appellant in the written statement that a 'Shivalaya' is situated in the Bagichi, therefore, this property is impartible and no partition can be effected of it. The defendant-respondent-Smt.Sushila Devi filed separate written statement and she mainly supported the contention of defendant-appellant, whereas rest of the respondents did not appear and contest the suit. Both the parties produced oral as well as documentary evidence and the learned trial Court after hearing the respective parties came to a conclusion that there is no evidence on record indicating that the house property was ever previously partitioned. As a consequence of that, the suit was decreed and the share of each of the parties was declared. Feeling aggrieved, the defendant-appellant Hari Shankar came to this Court by way of this appeal. During the pendency of appeal he died and his legal representatives have been substituted in place of him.

(3.) I have heard the learned counsel for the parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law relied upon by the parties.