Parties in a partition suit must approach the court with clean hands and disclose all material facts, or their claims may be dismissed based on evidence of prior private partition.

JUDGMENT :

Alka Sarin, J.

CM-3390-C-2020

1. For the reasons stated in the application, the same is allowed. The delay of 176 days in re-filing the present appeal is condoned.

RSA-1040-2020 (O&M)

2. Present appeal has been preferred by the plaintiff-appellants challenging concurrent findings returned by the Trial Court vide judgement and decree dated 01.05.2017 and by the First Appellate Court vide judgment and decree dated 15.05.2019.

3. The brief facts relevant to the present lis are that the plaintiff-appellants filed a suit for possession by way of partition of gair mumkin land measuring 03 Kanals 16 Marlas. It was the case set up by the plaintiff-appellants that the total Khewat was of 62 Kanals 10 Marlas and out of that 58 Kanals 14 Marlas was agricultural land and only land falling in Khasra No.498 (3-16) was gair mumkin abadi. The suit was contested by defendant- respondent Nos.1 and 2 who filed their joint written statement stating therein that they have constructed residential houses by spending lakhs of rupees and that their ancestors had orally partitioned the land since long and that defendant-respondent Nos.1 and 2 have been residing in the property in question and have built their houses. Defendant-respondent Nos.6 to 11, 13, 14, 16 and 20(ii) filed their joint written statement by raising legal objections that the family settlement had taken place between the share-holders who had constructed their houses on the land falling in their share. However, they stated that they would have no objection if the vacant land was partitioned. Defendant-respondent No.21, who was impleaded by way of an application under Order I Rule 10 of the Code of Civil Procedure, 1908, stated that the plaintiff-appellants had alienated their entire share in the suit property and as such they have no locus standi to seek partition. Qua some portion of the land an agreement to sell dated 08.03.1995 had been entered into whereby they had agreed to sell 14 Marlas 07 Sarsahi of land. It was further averred that on the basis of the agreement to sell the possession had been handed over to defendant-respondent No.21 and he had constructed a residential house on the same land. It was further the case that the remaining land had been sold vide sale deed dated 07.05.2010 in favour of one Kehar Singh son of Hazura Singh. Replication was filed. On the basis of the pleadings of the parties the following issues were framed:

1. Whether the plaintiff is entitled to the relief of possession through partition as prayed for? OPP

2. Whether the plaintiff is entitled to any other relief, as prayed for? OPP

3. Whether the suit of the plaintiffs is bad for non-joinder of necessary party? OPD

4. Whether the suit of the plaintiffs is not properly valued for the purpose of Court fee? OPD

5. Whether the plaintiffs have no locus-standi to file the present suit? OPD

6. Whether the suit is not maintainable in the present form? OPD

7. Whether the oral partition took place between the parties, as prayed for? OPD

8. Relief.

4. The Trial Court dismissed the suit vide judgement and decree dated 01.05.2017. Aggrieved by the same an appeal was preferred by two of the three plaintiffs which appeal was also dismissed by the First Appellate Court vide judgment and decree dated 15.05.2019. Hence, the present regular second appeal.

5. Learned counsel for the plaintiff-appellants would contend that both the Courts have erred in dismissing the suit. It is urged that no partition had taken place and hence the suit for partition ought to have been decreed. It is further the contention that since there was no partition of the gair mumkin abadi reflected in the revenue record, it cannot be said that there was oral partition of the suit property.

6. Heard.

7. In the