The burden of proving an oral partition of a Hindu Undivided Family property lies heavily on the party asserting it.

1. - This civil first appeal has been preferred under section 96, Civil Procedure Code, by appellants (defendants) against the judgment and decree dated 18.1.1997 passed by the learned Additional District Judge, No. 4, Jaipur City, Jaipur in civil suit No. 90/95 whereby the plaintiffs' (respondents) suit for partition has been decreed against the defendants (appellants).

2. The facts giving rise to the filing of this appeal briefly stated, are that the plaintiffs (respondents) failed a suit for partition against the defendants under section 96 CPC against judgment and decree dated 18.1.97 passed by Shri M.L. Sharma, RHJS ADJ No. 4, Jaipur City, Jaipur in Civil Suit No. 90/95 (38/81). (appellants), alleging therein inter-alia that the property as described in para 2 of the plaint was joint property of Laxmi Narain & Suraj Narain both sons of Roop Narain Poddar. The plaintiffs' case is that both the brothers having joint property and members of Hindu Undivided Family (H.U.F.) were having half share each in the suit property. Therefore, the plaintiff sought partition of the HUF by metes and bounds.

3. The defendants-appellants denied the plaintiffs' allegations and as per case set up in their written statement, the property was already partitioned by virtue of oral partition, which took place in Samvat year 2014 and since then they had separate kitchens and the property was in their separate possession and they had inducted tenants in their part of the partitioned property viz., shop etc. and after the partitioned property came to their share, they had carried substantial improvements over the same by way of additional construction and alteration on their parts of the partitioned property, in the shape of raising construction of shops on the ground, second third and fourth floors, respectively out of their own funds and as such the suit property had already been partitioned by way of oral partition amongst them (plaintiffs and defendants) much prior to filing of the present suit.

4. On the basis of the pleadings of both the parties, the learned trial court framed following issues:-

1. Whether the suit property is joint Hindu Undivided Family property and whether the plaintiffs are entitled to half share each as pleaded by them in the plaint ?

2. Whether the partition had taken place in Samvat year 2014 between Surajnarain and Laxminarain in respect of the suit property as alleged ?

3. Whether the suit is barred on the principles of acquiensence and estoppel and deserves to be dismissed ?

4. Whether the defendants are entitled to special costs ?

5. Relief ?

6. Whether by virtue of construction of shops and rooms on the 2nd floor as well as roof top the defendants are entitled to succeed on the claim of adverse possession thereon ?

7. Whether the defendants have raised constructions as alleged by them over the suit property particularly, second, third and fourth floors i.e. rooms and shops out of their own income and of which they are entitled to claim their rights as alleged ?

5. After recording of the evidence of the parties and hearing them, the learned trial Court decreed the suit as indicated above. Hence this first appeal.

6. I have heard the learned counsel for the parties and examined the evidence available on the summoned record as well as legal aspect of the matter with reference to their respective contentions.

7. It has been contended by Shri M.M. Ranjan, the learned counsel for the appellants that in written statement the defendants have specifically denied the allegations of the plaintiffs by contending inter alia that in the month of Shravan of Samvat year 2014, both the brothers Surajnarain and Laxminarain had oral partition to their joint HUF property and after partition thereof they had spent more than Rs. 25,000/- over it by carrying out substantial improvements therein out of their own income. This fact has been vehemently disputed by the plaintiffs on the assertion that no oral partition had taken place of the