The trial court's partition order, based on mutual agreements among siblings, was upheld, emphasizing the need for equitable distribution to ensure fairness despite conflicting motives.

JUDGMENT :

VIKAS BAHL, J.

1. Present civil revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 29.09.2022 (Annexure P-11) passed by the Civil Judge (Senior Division), Rohtak separating the share of the petitioner to the extent of 1/6^th share towards the eastern side.

ARGUMENTS ON BEHALF OF THE PETITIONER

2. Learned counsel for the petitioner has submitted that in the present case, although a preliminary decree had been passed holding that each of the six brothers i.e. petitioner and respondents No.1 to 5, were entitled to 1/6^th share of the suit property but while passing the impugned order dated 29.09.2022 and giving the eastern side of the property to the petitioner to the extent of 1/6^th share, the statement of the petitioner dated 29.09.2022 (at page 91 of the paper-book) to the effect that he does not want to separate his share from his five brothers, had not been taken into consideration by the trial Court in the proceedings for passing the final decree and thus, has submitted that the order dated 29.09.2022 is not in accordance with law and deserves to be set aside.

ARGUMENTS ON BEHALF OF THE RESPONDENTS

3. Learned counsel for the respondents, on the other hand, has submitted that the present petitioner is in possession of the suit property and has thus done every act to delay the proceedings. It is further submitted that the suit filed by respondent No.1/Kanwal Singh (one of the brothers) for possession by way of partition and permanent injunction and also for rendition of accounts was instituted in the year 2008 and a preliminary decree was passed on 08.01.2015 and the respondents, who are the other five brothers, were held entitled to 1/6^th share each, thus, totaling 5/6^th share. It is submitted that since the petitioner was in possession of the whole premises, thus, he filed an appeal against the said judgment and decree, which was dismissed on 13.03.2018 and further the regular second appeal filed before the High Court was also dismissed on 17.01.2019. It is argued that in spite of final adjudication of the shares of the parties, still the petitioner did not give possession of 5/6^th share to his other five brothers, thus, the application dated 03.10.2018 for passing a final decree of partition was filed. In the said proceedings also the petitioner made every effort to delay the same and the trial Court, after considering the fact that neither of the parties wanted to auction the property, observed that the present petitioner be given 1/6^th share on the eastern side. It is further submitted that the property of the wife of the petitioner is adjacent to the share to which the present petitioner had been held entitled to and has also referred to the site plan regarding the same. The said site plan which is undisputed is taken on record and has been marked as 'Mark A'. It is argued that in the said circumstances, the best possible method of partition has been adopted. It is further argued that all the five brothers had given a joint statement that they wanted to carry out the work together and being fair to the petitioner, they had even consented to the petitioner taking his 1/6^th share adjacent to the property of his wife-Santosh. It is submitted that the statement of the petitioner to the effect that he does not want to separate his share from his five brothers made on 29.09.2022 is apparently malafide and that for all these years the petitioner had bee