Mr. L. N. Mittal, J. (Oral) : - C. M. No. 1920-C of 2011

For reasons mentioned in the application, which is accompanied by affidavit, delay of 14 days in filing the appeal is condoned.

Main Appeal :

2. Defendants no.4 and 5, having failed in both the courts below, have come up by way of instant second appeal.

3. Suit was filed by Surjan–plaintiff/respondent no.1 and by Shadi Ram - plaintiff no.2 (since deceased and represented by respondents no.2 to 8) against Ratni Devi – defendant no.1 (since deceased and represented by respondents no.9 to 20), Joginder Ram–defendant no.2/respondent no.9, Nirmala Devi – defendant no.3/respondent no.12 and both the appellants as defendants no.4 and 5.

4. Parmeshwaria – common ancestor of plaintiffs and defendants no.1 to 3 was owner in possession of suit land measuring 05 marlas. He had three sons. Plaintiff no.1 is son of Bachna son of Parmeshwaria, plaintiff no.2 was son of Parmeshwaria, third son was Dayal Ram, whose widow, a son and a daughter were impleaded as defendants no.1 to 3. Plaintiffs got 1/3rd share each, whereas defendants no.1 to 3, as heirs of Dayal Ram, got 1/3rd share in the suit land, which is a barra. Inheritance mutation no.4674 of Parmeshwaria was accordingly sanctioned. However, after consolidation of holdings, metalled road was constructed leading to Village Manakpur. Some portion of the disputed barra had been included in the said road. Consequently, remaining portion of the barra is less than five marlas, as depicted in site plan by letters ABCD. Defendants no.1 to 3 sold 1/3rd share of five marlas of the disputed barra to defendants no.4 and 5 and mutation no.4676 has been sanctioned. However, total area of the barra at the spot is not five marlas. Defendants no.4 and 5, therefore, cannot claim 1/3rd of five marlas. They can claim 1/3rd share of existing area. Defendants no.4 and 5 also wanted to raise construction on the portion abutting the passage. Accordingly, plaintiffs sought separate possession of their share by partition of the suit property.

5. Defendants contested the suit. It was admitted that Parmeshwaria was owner of the suit land. However, it was pleaded that about 14 years ago, family settlement was arrived at between plaintiffs and Dayal Ram (represented by defendants no.1 to 3 in the trial court), whereby specific portion, as described in the written statement and specified in the plan attached to the written statement, fell to the share of Dayal Ram. Said oral family settlement was accompanied by delivery of possession. Dayal Ram remained in exclusive possession of the said property, which was sold by his legal heirs defendants no.1 to 3 after his death, to defendants no.4 and 5 vide registered sale deed dated 29.10.2001. Since then, defendants no.4 and 5 are exclusive owners in possession thereof. Plaintiffs have no right, title or interest therein. Various other pleas were also raised.

6. Learned Civil Judge (Junior Division), Rajpura, vide judgment and decree dated 29.04.2008, decreed the plaintiffs’ suit holding that both the plaintiffs are entitled to 1/3rd share each in the suit property. First appeal preferred by defendants no.4 and 5 has been dismissed by learned Additional District Judge, Patiala, vide judgment and decree dated 06.10.2010. Feeling aggrieved, defendants no.4 and 5 have filed the instant second appeal.

7. I have heard learned counsel for the appellants and perused the case file.

8. It is undisputed that Parmeshwaria was owner of the suit property and the same was succeeded by his three heirs in equal shares i.e. 1/3rd share each. Consequently, both plaintiffs have 1/3rd share each in the suit property and Dayal Ram – predecessor of defendants no.1 to 3 also had 1/3rd share in the suit property. Claim of appellants is based on alleged oral family settlement. However, the defendants have miserably failed to prove oral family settlement. According to the defendants, the said family settlement took place 14 years befo