JUDGMENT :

Alka Sarin, J. -

CM-3804-C-2020

1. For the reasons mentioned therein, the application for condonation of 237 days delay in refiling the appeal is allowed.

RSA-1265-2020

2. The present appeal has been preferred by the plaintiff-appellants against the judgment and decree dated 15.03.2016 passed by the Trial Court and the judgment and decree dated 17.09.2018 passed by the First Appellate Court dismissing the suit filed by the plaintiff-appellants.

3. The brief facts relevant to the present lis are that the plaintiff-appellants filed a suit for partition of the suit land averring that the parties are co-sharers and that the suit land had not been partitioned so far. The plaintiff-appellants have 1/3rd share but they are unable to use their share without getting the same partitioned. The defendant-respondents had assured to give the possession of the suit land to the extent of the share of the plaintiff-appellants but had now refused. Hence, the suit. The defendant-respondent No.1(a) filed his written statement taking the stand that the suit was not maintainable as samadhis of their ancestors are existing on the suit land and therefore the suit land was not partible. There was a temple of God Shiva and samadhis of ancestors on the suit land and that digging or raising construction on the same was religiously and socially banned. It was further stated that the joint property had already been partitioned by the parties and all the parties are residing separately. The defendant-respondent Nos.2, 3, 6 and 7 in their written statement raised preliminary objections regarding maintainability, concealment of material facts, property being already partitioned, etc. On merits it was stated that the suit land was the common property of the ancestors of the parties and had been partitioned about 40 years ago. All the parties were in possession of their respective shares and the suit land was kept common for the purpose of temple and samadhi etc. and it was decided by the ancestors of the parties that the suit land will not be partitioned in future. Defendant-respondent No.9 in his written statement stated that he had no objection to the suit land being partitioned. In the replication the contents of the written statements were denied and those of the plaint were reiterated.

4. On the basis of the pleadings of the parties the following issues were framed :

1. Whether the suit property is joint ? OPP

2. Whether plaintiffs have 1/3rd share in the suit property ? OPP

3. Whether there is non-joinder of necessary parties ? OPD

4. Whether suit is not maintainable for not joining of the common properties ? OPD

5. Relief.

5. The Trial Court dismissed the suit vide judgment and decree dated 15.03.2016. Aggrieved by the same an appeal was preferred by the plaintiff-appellants which appeal was also dismissed by the First Appellate Court vide judgment and decree 17.09.2018. Hence, the present regular second appeal.

6. Learned counsel for the plaintiff-appellants has contended that both the Courts have erred in dismissing the suit of the plaintiff-appellants. It is submitted that it was fully proven on the record that the suit land was joint between the parties and therefore the plaintiff-appellants were entitled to get the same partitioned and enjoy their share. It is urged that there was no well and temple on the suit land but were outside it and that the suit land was open land with some chabutras on it. As per counsel the impugned judgements and decrees are based upon conjectures and surmises and cannot be sustained.

7. I have heard learned counsel for the plaintiff-appellants.

8. Both the Courts have reached concurrent findings of fact that there is a temple existing on the suit land and therefore the suit land cannot be partitioned. The First Appellate Court found that 'Though both the appellants while appearing as PW-3 and PW-5 denied that the disputed property was left joint for religious purposes but it was admitted by both of them that a temple was exi