The court upheld the decree for possession by way of partition and permanent injunction, emphasizing the importance of proving family partition and ownership in property disputes.

AVNEESH JHINGAN, J.

1. The present regular second appeal has been filed by the defendants being aggrieved of the concurrent findings of the learned courts below decreeing suit of the plaintiffs for possession by way of partition and permanent injunction.

2. The parties are being addressed as per their original position in the plaint.

3. The plaintiffs preferred suit for possession by way of partition and permanent injunction. It was averred that a plot bearing No. 449/4 is situated within the abadi deh of village Gopalpur, Tehsil and District Sonepat. The said plot was carved out and allotted to the parties during partition of the village abadi deh. The detailed description of the plot was given in the suit. It was pleaded that the plaintiffs and defendants are in possession of the plot as per their respective arrangement. The plaintiffs are in possession of western half portion of the said plot and the defendants are possessing the remaining eastern half. The parties have constructed their respective houses on each side leaving the middle portion as vacant. It was averred that though the plot was never partitioned by metes and bounds, but the parties by mutual consent were possessing their respective half share of the plot. The filing of the suit was necessitated as it was alleged that the defendants were forcibly trying to cover up area more than their half share. The suit was filed for possession of half share of the disputed plot by way of partition and for permanent injunction to restrain the defendants from raising construction upon the area more than their share in the said plot.

4. On notice, written statement was filed by the defendants.

5. The learned trial court framed issues.

6. The plaintiffs examined Sardar Singh as PW.1, Jai Bhagwan as PW.2 and Naresh Kumar as PW.3. Two site plans and copy of jamabandi were placed on record as Ex.P1, Ex.P2 and Ex.P3, respectively. Defendant No.1 Kanwal Singh appeared himself as DW.2.

7. After considering the evidence and hearing learned counsel for the parties, learned trial court decreed the suit ordering that “the present suit of the plaintiffs is decreed and the plaintiffs are declared as owners in possession of the half share of the suit property and the defendants are also collectively or also declared as the owners in possession of the half share of the suit property. Also, defendants are restrained from raising any construction in the middle portion of the suit property till the final decree.”

8. Feeling aggrieved, appeal was filed by the defendants. The learned Additional District Judge, Sonepat, dismissed the appeal vide judgment and decree dated 25.01.2016 and upheld the judgment and decree passed by the learned trial court.

9. Hence, the present Regular Second Appeal at the hands of the defendants.

10. Learned counsel for the appellants argued that the courts below erred in decreeing the suit. He contended that the plaintiffs and the defendants are owners of the plot in dispute to the extent of half share each, as per the oral family partition. They have constructed their houses on each side of the plot on their respective shares. He further argued that even the oral partition has to be given effect. He prayed that the appeal be allowed and the judgments and decrees passed by the courts below be set aside.

11. It is important to note that certain issues have not been disputed by the parties at any stage. Firstly, that the plot bearing No. 449/4 situated within the abadi deh of the village was carved out and allotted to the parties during partition of the village abadi deh. Secondly, it is not disputed that the plaintiffs are in possession of western half portion of the plot and the defendants are in possession of eastern half portion of the plot. Thirdly, it is also not disputed that the plaintiffs and defendants have equal half share in the plot. The only dispute is as to (i) whether there was oral family partition; and (ii) whether the defendants were possessing m