Private partition of joint property must be proved by clear and convincing evidence, and mere possession of separate parcels of land by co-sharers is not sufficient to establish private partition.

1. Aggrieved from the judgment and decree dated 8-6-1972 passed by the Addl. District Judge, Mandi, the plaintiff appellants have preferred this appeal.

2. Briefly, the facts are that the appellants (hereinafter the plaintiffs) filed a suit for declaration to the effect that they were the owners of half share in the suit land measuring 76-2-7 bighas situate in Mauza Neri (fully detailed in the plaint) which was liable to be partitioned in accordance with the shares of the parties. It was alleged by the plaintiffs that they had applied for partition of the land to the revenue authorities but upon the objections of the respondents (hereinafter the defendants) their application for partition was disallowed on 7-11-1967 (Ex.PA) and the parties were directed to get the question of title decided through a civil Court. In these circumstances, this suit was filed in the Court of Sub Judge Sundernagar on 10-5-1968.

3. The defendants contested the suit and claimed that there had been a family partition between the parties about 47 years back, and the parties were in separate possession of their respective shares. The right of the plaintiffs to get the disputed land partitioned was denied.

4. The following issues were framed on 29-11-1968 :

1. Whether the suit is within limitation? OPP

2. Whether the land in suit is liable to be partitioned? OPP

3. Whether the partition has been effected prior to the first settlement and the parties are in possession of their respective shares since that date ?OPD.

4. If issue No.3 is not proved whether the defendants become owners of the suit land by adverse possession? OPD

5. Whether the defendant got inferior land at the time of partition and if so. what improvement (sic) to the defendants? OPD.

6. Whether the defendants are entitled to get special costs? OPD

7. Relief.

5. The learned Addl. Sub Judge Sundernagar held that the plaintiffs suit was within time and the land was liable to be partitioned. He further held that the defendants had not become owners by adverse possession and no private partition had been effected between the parties. The plaintiffs suit was decreed on 24-3-1971 by him.

6. Aggrieved from the judgment of the Sub Judge, the defendants preferred an appeal No. 19 of 1971 which was decided by the Addl. District Judge, Mandi on 8-6-1972. The learned Addl. District Judge held that a private partition of the property had taken place between the parties and the plaintiffs were not entitled to get the disputed land partitioned. The appeal of the defendants was accepted and the judgment and decree of the Addl. Sub Judge Sundernagar was set aside. The plaintiffs suit was dismissed.

7. I have heard the learned counsel for the parties.

8. The learned counsel for the appellants-plaintiffs contends that private partition has not been proved and the findings of the learned Addl. District Judge are wrong. It is contended that the plaintiffs are co-sharers to the extent of ½ and are entitled to the decree prayed for.

9. The learned counsel for the defendants-respondents supports the judgment of the learned Addl. District Judge and contends that the parties had partitioned the land long ago and were in separate possession of different parcels of land since then. The land revenue was being paid by the parties separately and they were also separately enjoying the usufruct of the land possessed by them. He contends that an inference should be drawn from the various facts that there was a private partition of the disputed land.

10. I have considered the contentions of the learned counsel for the parties and have also gone through the records of the case.

11. The plaintiffs are the descendants of Jindu s/o Kanu and defendants Nos.1 to 5 are the descendants of Sunku s/o Kanu. Kanu had three more sons, Janth, Lohar and Tikhu, who died issueless. The plaintiffs and defendants Nos. 1 to 5 have half share each as is also proved from the various revenue records. In Ex.PB = Ex.DW 1/E Jambandi Misil Haqiat Bandobast, th