Mr. L. N. Mittal, J. (Oral):- Defendant no.1 Gurmeet Singh has filed the instant second appeal.

2. It is unfortunate litigation among the siblings. Suit was filed by respondents no.1 and 2/plaintiffs (Manjit Singh and his wife Balbir Kaur) against defendant no.1/appellant Gurmeet Singh and defendant no.2/proforma respondent no.3 Satnam Singh. Plaintiff no.1 and both defendants are sons of Gurbachan Singh. Defendant no.2, being of unsound mind, was sued through his mother Harbans Kaur as Guardian.

3. Undisputedly the suit house was owned and possessed by Gurbachan Singh, vide registered conveyance deed dated 13.08.1962. On his death, it was inherited by his four sons i.e. plaintiff no.1, defendants no.1 and 2 and Darshan Singh and also by a daughter Ranjit Kaur and widow Harbans Kaur i.e. 1/6th share each. Plaintiffs’ case is that Ranjit Kaur gifted her 1/6th share in the suit property in favour of her three brothers i.e. Darshan Singh, plaintiff no.1 and defendant no.1 vide registered gift deed dated 28.04.1999. In December 2003, Darshan Singh sold his share in the suit property to plaintiff no.1 and defendant no.1 in equal shares vide registered sale deed dated 09.12.2003. Thus, plaintiff no.1 and defendant no.1 became owners of the suit house to the extent of 1/3rd share each. Thereafter, plaintiff no.1 purchased 1/6th share of his mother Harbans Kaur vide registered sale deed dated 09.06.2004 and consequently, plaintiff no.1 became owner in possession of half share of the suit property. Then he gifted 1/3rd share out of it to plaintiff no.2 vide registered gift deed dated 06.11.2006. Thus, according to plaintiffs, plaintiff no.1 is left with 1/6th share, plaintiff no.2 and defendant no.1 have 1/3rd share each and defendant no.2 has 1/6th share in the suit house. The plaintiffs’ further case is that on 02.01.2007, parties mutually partitioned the suit house. Northern portion measuring 262.66 sq. yds., depicted by letters ABGH in site plan, came to defendant no.1; Middle portion measuring 393.93 sq. yds., depicted by letters GHIJ in the site plan, came to the share of plaintiffs; whereas Southern portion measuring 131.41 sq. yds., depicted by letters IJCDEF, came to the share of defendant no.2, the total area of house being 788 sq. yds. The parties raised construction over their respective portions. Accordingly, plaintiffs sought declaration that the parties are owners in possession of aforesaid respective portions in the suit house. In the alternative, the plaintiffs sought partition of the suit house according to the aforesaid shares.

4. Defendant no.1 inter alia pleaded that Ranjit Kaur gifted only 100 sq. yds. area out of her share to her three brothers and the remaining area is still of her share. Sale deed by Harbans Kaur in favour of plaintiff no.1 was denied. The said sale deed was said to be result of fraud. Harbans Kaur was alleged to be illiterate and parda nashin lady. No sale consideration was paid to her by plaintiff no.1. No mutual partition of the suit property ever took place. The parties are in separate possession as coowners. Defendant no.1 claimed entitlement to 272.41 sq. yds. area. Other plaint allegations were not controverted. Defendant no.2, however, admitted the claim of the plaintiffs.

5. Learned Civil Judge (Junior Division), Panipat, vide judgment and decree dated 10.06.2010, decreed the suit for partition of the suit house, holding plaintiff no.1 to be entitled to 1/3rd share therein and preliminary decree was accordingly passed. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Panipat, vide judgment and decree dated 29.10.2010, holding the plaintiffs to be entitled to half share in the suit property and preliminary decree for partition has accordingly been passed. Feeling aggrieved, defendant no.1 has preferred the instant second appeal.

6. I have heard learned counsel for the appellant and perused the case file.

7. The basic disput