The legal consequences of family settlement and family partition, and the binding nature of admissions made in pleadings.

M.M.Kumar, J.

1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code) preferred by one Ba-narsi Dass against the concurrent findings of facts recorded by both the Courts below holding that he is not entitled to partition of the suit property by way of separate possession because the partition had already taken place during the life time of the father of the plaintiff-appellant as well as defendant-respondents. It has also been held that on the basis of partition which has taken place during the life time of Balaki Ram their father, the parties are in separate possession of their respective shares.

2. The plaintiff-appellant instituted Civil Suit No. 253 of 1994 on 12.8.1994 against the defendant-respondents for partition by way of separate possession in respect of the suit property. The property was owned by Balaki Ram, father of the plaintiff-appellant as well as defendant-respondents. It has been averred by the plaintiff-appellate that two properties purchased by his father were the self acquired properties. His father died intestate in the year 1979. Therefore, it was to be inherited by all his heirs, namely, five sons who are plaintiff-appellants and defendant-respondents and two daughters who are defendant-respondents 11 and 12. Equal share in the properties in respect of all the sons and daughters has been claimed alleging that all of them are still cosharers as the partition of above said properties has not taken place and the defendant-respondents are in possession of more than their share.

3. In the written statement, the stand taken by the defendant-respondents is that defendant-respondent Rattal Lal had earlier filed a suit for partition in respect of the disputed property. In that suit, the plaintiff-appellant was also impleaded as a party who had filed a written statement admitting that partition had already taken place between the plaintiff-appellant and defendant-respondents. A certified copy of the written statement filed by the plaintiff-appellant has been proved on record as Ex.D1. In paragraph 2 of the plaint signed by defendant-respondent Rattan Lal, it was pleaded that after the death of Balaki Ram, they inherited the property exclusively on the basis of family settlement made during the life time of their father. It was further averred that plaintiff-appellant alongwith defendant-respondents were given equal shares. On the basis of family settlement, the plaintiff-appellant and defendant-respondents became exclusive owners of the suit property. The contents of the plaint were admitted by the plaintiff-appellant in his written statement with the averments that such a partition has taken place in 1965 but it has been asserted that the plaintiff-appellant opposed the partition. On the basis of aforementioned pleadings of the parties, both the Courts recorded the findings that the parties in accordance with the partition which had taken place in the year 1965 have been in exclusive possession of the property falling to their share. Therefore, no suit for partition was maintainable. It has also been held that the plaintiff-appellant is estopped by his act and conduct from filing the present suit. The suit filed on 12.8.1994 has also been held to be time barred.

4. I have heard Mr. Puneet Jindal, learned counsel for the plaintiff-appellant who has argued that an admission made by a party in the written statement can be explained by adducing evidence that it was erroneous. According to the learned counsel in paragraph 2 of the plaint filed by Rattan Lal defendant-respondent, it was merely averred that a family settlement has taken place and no mention was made of any family partition. The learned counsel submitted that in law the concept of family partition is entirely different than the family settlement because the former result into binding legal consequences. Another submission make by the learned counsel is that once jointness of rights with