The main legal point established in the judgment is that possession by one co-sharer does not necessarily indicate partition, and partition must be proved with cogent evidence.

1. The ancestry of the litigating parties may be noted.

2. Jit Singh filed a suit for partition of a plot of land admeasuring 1200 sq.yds. assigned No.1572 in village Magholpur Kalan stating that the village was commonly known as Mangolpur Kalan and that their ancestors were the proprietors of vast land in said village and were biswedars i.e. co-sharers of the abadi land in the village, on which they had a house and gher/ghitwar. The ancestory was stated to be as per the afore-noted pedigree table. It was stated that during the settlement of the abadi, effected in the village in the year 1880, the afore-noted plot number was assigned to the land in possession of their ancestors. Alleging that the holding was joint, partition thereof was sought. Right of Ghasi, Jawahar Singh and Jit Singh was pleaded to be 1/3rd each.

3. On the death of Jit Singh his wife, sons and daughter

were substituted as the plaintiffs being his legal heirs.

4. The children of Ghasi opposed the claim alleging that they were the exclusive owners of the land and that the children of Chajju had separated long before they, i.e. children of Ghasi attained majority.

5. No written statement was filed by the legal heirs of Jawahar Singh who were impleaded as defendants No.5 to 8.

6. Needless to state, on the pleadings of the parties, the only material issue which arose for consideration was whether a separation had taken place amongst the children of Chajju as alleged in the written statement.

7. Vide impugned judgment and decree dated 25.11.1994, a finding has been returned against defendants No.1 to 4 holding that said defendants have failed to prove a partition amongst the children of Chajju; resulting in a preliminary decree being passed declaring the share of plaintiffs to be 1/3rd (jointly); that of defendants No.1 to 4 being 1/3rd (jointly); and that of defendants No.5 to 8 being 1/3rd (jointly).

8. At the trial, which commenced during the life-time of Jit Singh, he examined himself as PW-1, and in his deposition reiterated the facts pleaded in the plaint.

9. Relevant would it be to note that during cross-

examination he was questioned as to what happened to the agricultural lands owned by the family, to which he replied that the same were acquired. No suggestion was put to the witness that the respective family members were assessed separately for compensation in respect of the acquired lands.

10. One Pyare was examined as PW-2, who deposed that he was a resident of the village and that no separation took place amongst the children of Chajju.

11. PW-3, Sagan Kumar Saini, a draftsman by profession, proved the site-plan of the land, stating that he had prepared the same i.e. Ex.PW-3/1.

12. Relevant would it be to note that PW-3 was not cross-examined with respect to the site-plan. He was only questioned with respect to his qualifications of being a draftsman. He informed that he had a diploma in the relevant subject.

13. PW-4, Pawan Kumar Seth, a clerk from the Record Room (Judicial) Revenue, Tis Hazari produced the record pertaining to ejectment proceedings initiated by the Gaon Sabha of Village Mangolpur Kalan against Ghasi and Jawahar Singh.

14. PW-5, Chaudhary Risal Singh, Advocate, proved Ex.PW-5/1, being a complaint dated 28.11.1968 made to the Revenue Assistant by the Panchayat Secretary on behalf of Gaon Sabha Mangolpur Kalan alleging that Ghasi and Jawahar Singh, sons of Chajju had illegally trespassed upon the land of the Gaon Sabha.

15. After examining PW-1 to PW-5, counsel for the plaintiffs tendered in evidence the certified copy of the order dated 30.3.1970, Ex.P-2, passed by the Revenue Assistant dismissing the complaint of the Gaon Sabha (Ex.PW-5/1) holding that the disputed land did not belong to the Gaon Sabha, and that the record of settlement effected in 1880 revealed that the land recorded in the revenue record, vide serial entry No.1572, was to the effect that the said land was within the lal dora and that on the p