An oral partition of a joint Hindu family property must be proved by clear and convincing evidence.

N.K.Kapoor, J.

1. This is plaintiffs Regular Second Appeal against the judgment and decree of the Additional District Judge whereby judgment and decree of the trial Court was set aside and the suit of the plaintiff was dismissed.

2. Briefly put, the plaintiff filed a suit for partition inter alia, pleading that the plaintiff and defendants are owners in equal shares of the residential house bearing No. XI-631 situated in Mohalla Dyalpura Karnal which was inherited by both of them in equal shares from their father Sh. Jhandu Ram; The house is still joint and has not been partitioned by meats and bounds.

3. Defendants filed written statements and took preliminary objections as to the locus standi of the plaintiff to file the present suit being bad for mis-joinder and non-joinder of parties, and that the plaintiff is estopped by his own act and conduct to file the present suit. Plea was also taken that the plaintiff on different occasions had been mortgaging the property in his exclusive possession vide separate mortgage deeds which amounts to separation.

4. On the pleadings of the parties following issues were framed:-

(1) Whether the plaintiff is a co-sharer in the property in dispute? OPP.

(2) If issue No. 1 is proved whether the plaintiff is entitled to the partition of the property in dispute? OPP.

(3) Whether the plaintiff has got no locus standi to file and maintain the present suit? OPD.

(4) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD.

(5) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD.

(6) Whether the suit is time barred? OPD.

(7) Relief.

5. The trial Court passed a preliminary decree to the effect that the plaintiff are entitled to separate possession of 1/2 share in the disputed property after getting the same partitioned. Issues No. 1 and 2 were decided in favour of the plaintiff. Issues No. 3, 4 and 6 were decided against the dependents. Issue No. 5 was decided in favour of the plaintiff holding that in the previous suit defendants admitted the suit property to be the joint property.

6. The appellate Court once again examined the case on facts as Well as on law. The appellate Court has not given its decision in respect of each issue as framed. It has discussed the oral is well as documentary evidence of the parties and reached to the conclusion that there was oral partition between the two brothers of the house in dispute. As per this oral partition, western part came to the share of the plaintiff whereas eastern part fell to the share of the defendants. This is amply clear from the conduct of the plaintiff. Reliance for this view was placed on some of the mortgage deeds alleged to have been executed by the plaintiff and the subsequent order of redemption etc. The Court, however, came to the conclusion that there is a common stair case and a common passage for both the parties. It is this finding of the lower appellate Court which is being as-sailed by the appellant terming this to be wholly illegal on the precise ground that the conclusion of the lower appellate Court is nothing but conjectual.

7. According to the appellant, there is not an iota of evidence on record to suggest that at any precise time parties to the dispute agreed to partition the joint holding. In fact, this has not been pleaded by the respondent-defendant. According to the appellant, the lower appellate Court has simply glossed over the oral admission made by the defendant as well as the fact that as proved on record plaintiff is only in occupation of 72 sq. yards whereas defendants are in possession of 132 sq. yards of land. In support of his assertion the counsel made mention of the fact that the whole of the disputed property bears one house tax No. 631/XI. Had there been partition of the joint holding as pleaded by the defendants, both the properties would have been given separate house numbers. Thus as per assessment register, both the parties conti