The main legal point established in the judgment is that once a party agrees to the mode and manner of partition before the Commissioner, they cannot resile from the same.

JUDGMENT :

CFA No. 17/2013

1. The appellants have challenged judgment and decree dated 31.12.2012 passed by the learned Additional District Judge, Doda (hereinafter to be referred as the trial court), whereby final decree in terms of Commissioner’s report effecting the partition of the suit property has been passed.

2. It appears that the predecessor-in-interest of respondent Nos. 1 to 4 herein (hereinafter to be referred as the plaintiff) had filed a suit for partition before the court below seeking partition of movable and immovable property left behind by their ancestors claiming that the parties to the suit are the members of the joint Hindu family. The description of the property sought to be partitioned as given in the plaint is reproduced as under:

“HOUSES

Residential house (old construction) consisting of four rooms and a verandah on the southern side as shown in the enclosed plan:

Two cow-sheds later renovated by the plaintiff:

Grain-store and covered entrance gate.

To these was added new construction by the plaintiff consisting of two residential rooms, one kitchen and one verandah shown on the Western side in the enclosed plan.

Defendant No. 1 demolished the old grain store and covered entrance gate and by extending towards south and north raised a new construction consisting of three rooms and one kitchen as shown in the enclosed plan. Janmeet Singh deceased constructed a cow-shed one store, 3 bed rooms, one big hall and one kitchen. All the constructions were raised upon ancestral land while the new constructions done by the plaintiff and defendant No. 1 are either at the site or in near vicinity of the ancestral house in Bolri Jagrota, the one raised by Janmeet Singh is at a little distance away in Dhamunda-Jagrota. The valuation is approximately Rs. 50,000/-.

LANDS:

Land both abi and khushki and orchards known as Chak Trone measuring 10 kanals 3 marlas, Chak Massri measuring 22 kanal 3½ Marlas, and Chak Jagret measuring 70 kanals 11 marlas as described in the three copies of Jamabandi enclosed herewith. The valuation is approximately Rs. 60,000/-.

MOVEABLE PROPERTY:

20 sheep and goats, 8 cows and bulls valued at Rs. 6,000/-

Ornaments consisting of golden budkies weighing 3 tolas, silver gokhrus and bangles, one pair of silver chattars, one silver glass weighing 40 tolas valued at Rs. 8,000/-.

HOUSE HOLD UTENSILES AND IMPLEMENTS OF Agriculture valued at Rs. 2,000/-.”

3. In the plaint, it was claimed that Kartar Singh, the youngest brother of the parties had died and mutation of his shares was effected in the name of remaining three brothers i.e. predecessors in interest of the parties. It was claimed by the plaintiff that entire landed property is in joint possession of the parties and the parties have taken up residence in their respective new constructions raised by them. It was claimed that entire property is joint and undivided and all the parties except appellants herein are interested in partitioning of the property.

4. The predecessor in interest of the appellants, who happened to be the defendant No. 1 in the suit contested the suit by filing his written statement wherein he claimed that predecessor in interest of the parties, Rana Randhir Singh had partitioned the ancestral property amongst his four sons during his life time and there is no question of partitioning of the property afresh. According to defendant No. 1, the residential house, cow shed and grain storage had fallen to his share and these constitute his exclusive property. It was claimed that the plaintiff was permitted to build a few rooms on a portion of the land that was in possession of defendant No. 1and a big chunk of land that had fallen to the share of the plaintiff was taken over by Baldev Singh and Thakur Singh. It was claimed that the plaintiff having allowed his share of the land to be occupied by Baldev Singh and Thakur Singh cannot seek partition of the ancestral property.

5. Learned trial court, on the basis of the pleadings of