IMPORTANT POINT
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DARSHAN SINGH, J.

1. This Regular Second Appeal has been preferred by defendants no.3, 4, 5 and 7 against the judgment and decree dated 19.10.2015 passed by the learned Additional District Judge, S.A.S Nagar, Mohali, vide which the appeal filed by them against the judgment and decree dated 27.08.2013 passed by the learned Additional Civil Judge (Sr. Division), Kharar, has been dismissed.

2. Plaintiffs-respondents no.1 and 2 moved an application for passing the final decree for final partition by metes and bounds in respect of 5/9 share in the suit property. They had filed a suit for separate possession by way of partition. The preliminary decree was passed on 15.02.1992 by the learned trial Court. The appeal preferred against the preliminary decree was dismissed. Hence this application.

3. In the reply filed by the appellants-defendants, the factum regarding passing of the preliminary decree was admitted. It was also admitted that Jita Singh @ Ajit Singh, the predecessor-in-interest of the appellants has purchased the share of Sham Kaur and Nachhattar Kaur. However, it was pleaded that the parties were already in separate possession of their respective shares as per the family settlement. They are in possession of the area adjoining the road upon which the construction in the form of huts has also been raised and the same has been given on rent. They pleaded that in these circumstances, the question of giving separate possession to the plaintiffs does not arise at all and the application was liable to be dismissed.

4. The application filed by respondents no.1 and 2 for passing the final decree was allowed by the learned trial Court vide impugned judgment and decree dated 27.08.2013. The final decree for partition by metes and bounds in respect of 5/9 share of the plaintiffs was passed.

5. Aggrieved with the aforesaid judgment and decree, the appellants preferred the appeal and the same was also dismissed by the learned Additional District Judge, S.A.S. Nagar, Mohali, vide impugned judgment and decree dated 19.10.2015. Hence, this Regular Second Appeal.

6. During the pendency of this appeal, the appellants have also moved CM No. 3843-C of 2016, the application under Order 41, Rule 27 Code of Civil Procedure, 1908 (for short 'C.P.C') for permission to place on record the certified copy of the order dated 03.06.1988 passed by the Assistant Collector 1st Grade, Kharar (Annexure A-2)

7. I have heard Mr. Amit Jain, Advocate, learned counsel for the applicants-appellants and have carefully gone through the paper book.

8. Initiating the arguments, learned counsel for the appellants contended that the plaintiff-respondents have moved an application for partition of the disputed property comprised of Khasra No. 201(1-2) before the Assistant Collector 1st Grade, Kharar. In the said application, they have admitted that they are in possession of the red portion shown in the site plan attached with the application, which is away from the road. It has also been admitted that the huts are in existence in the blue portion, which have been let out by the appellants. Thus, he contended that the possession and construction of the appellants on the portion adjoining to the road was admitted.

9. He further contended that the learned trial Court while passing the preliminary decree has categorically held that if any pacca structure has been raised by either of the parties, the same would be kept intact as far as possible while finally partitioning the land and passing the final decree. He contended that the learned Courts below had passed the final decree in contradiction to the preliminary decree. The pacca construction raised by the appellants over the portion adjoining the road was admitted and was also proved from the report of the Local Commissioner and this portion should have been allotted in the partition to the appellants. But, the said portion has also been partitioned and allotted to plaintiffs-respondents no.1 and 2. Thus, he contended