L.N.Mittal, J.

1. CM No. 944.C of 2011

For reasons mentioned in the application which is accompanied by affidavit, delay of 70 days in refiling the appeal is condoned.

Bhoop Singh plaintiff having failed in both the courts below is in second appeal.

2. Appellant-plaintiff filed suit against his brothers Kurda Ram and Ram Singh defendants-respondents for separate possession of 1/3rd share by partition of suit property comprised of killa No. 10/7(0-2), khasra No. 75(2-18) and property depicted by letters ABC in the site plan alleging that parties are co-owners in joint possession of the suit property whereas one old haveli has already been partitioned among the parties. It is pleaded that plaintiff and both defendants have 1/3rd share each in the suit property.

3. Defendant No. 1, inter alia, pleaded that oral partition on the basis of mutual family settlement was effected on 22.5.1988 between the parties. They are bound by the same. The said mutual partition was also incorporated in writing dated 9.4.2000 which was acknowledged by the parties in the presence of the witnesses. The said partition was acted upon in the year 1988 itself and since then the parties are in exclusiv