IMPORTANT POINT
Oral partition--Presumption of--Implementation of family partition in revenue record in necessary.

L. N. Mittal, J. (Oral) : C. M. No. 4849-C of 2011 :

Allowed as prayed for.

C. M. No. 4850-C of 2011 : Application is allowed and Annexures A-1 to A-5 are taken on

record, subject to all just exceptions.

Main Appeal :

2. Defendant no.1 Bakhtawar Singh having failed in both the courts below has filed the instant second appeal.

3. Respondent no.1-plaintiff Sarwan Singh filed suit against defendant no.1-appellant and respondents no.2 to 5 as defendants no.2 to 5 for separate possession of his (plaintiff’s) one-third share by partition of suit land measuring 01 kanal 13 marlas comprised of khasra no.86. Gurbax Singh – father of defendants no.1 and 2 and Piara Singh – father of defendants no.3 to 5 are brothers of Sarwan Singh – plaintiff. Plaintiff’s case is that suit land is joint land of the parties, in which plaintiff has onethird share.

4. Defendants no.3 to 5 admitted the claim of the plaintiff, whereas defendant no.2 was proceeded ex-parte.

5. Only defendant no.1 contested the suit. Defendant no.1 inter alia pleaded that in addition to the suit property, there were also many other joint properties of the parties. Parents of the parties effected oral partition of the said properties. In the said oral family settlement, the suit land fell to the share of defendant no.1, whereas other properties fell to the share of plaintiff and father of defendants no.3 to 5 and since then, the parties are in exclusive possession of the properties, which fell to their shares. Some other pleas were also raised.

6. Learned Additional Civil Judge (Senior Division), Nawanshahar (S.B.S.Nagar), vide judgment and decree dated 25.09.2009, decreed the plaintiff’s suit and passed preliminary decree for partition. First appeal preferred by defendant no.1 has been dismissed by learned Additional District Judge, Shaheed Bhagat Singh Nagar, vide judgment and decree dated 12.01.2011. Feeling aggrieved, defendant no.1 has preferred the instant second appeal.

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

8. Revenue record reveals that parties are joint owners of the suit land and plaintiff has one-third share therein. Consequently, onus was on defendant no.1-appellant to prove that there was oral family settlement/partition in which the suit property fell to his exclusive share. However, defendant no.1 has miserably failed to prove the said version. Defendant no.1 himself did not enter into the witness-box and therefore, very strond adverse presumption arises against defendant no.1-appellant. Defendant no.1 examined his Attorney Tarsem Singh (DW-2). However, testimony of Tarsem Singh (DW-2) would not be sufficient substitute for the testimony of defendant no.1 himself. In order to give veracity to the testimony of Tarsem Singh, he deposed that he was also present at the time of alleged family settlement. This part has been introduced to only give veracity to his testimony regarding the alleged oral family settlement. However, Tarsem Singh was completely shaken in cross-examination. His testimony is sufficient to discard the version of defendant no.1-appellant. Tarsem Singh could not even tell the year, date or month of the alleged partition. Moreover, Tarsem Singh explicitly and categorically admitted that suit property is joint property of the parties to the suit. He also stated that there are also other joint properties of the parties in the village. These admissions made by star witness of defendant no.1-appellant in crossexamination completely knock out the bottom of the case of the appellant. It would not be out of place to notice here that appellant has placed on record Annexure A-3 – complete statement including cross-examination of the plaintiff and also Annexure A-4 – complete statement of Gurbachan Singh (PW-2) including cross-examination, but while placing on record the testimony of Tarsem Singh (DW-2), only affidavit of his examination-inchief (Annexure A-5) has been placed on record, whereas his crossexamination,