JUDGMENT :

Nidhi Gupta, J.

Challenge in the present appeal is to the judgment and decree dated 13.09.2024 passed by the learned Additional District Judge, Bhiwani in Civil Appeal No.676 of 2017; and it is prayed that the judgment and decree dated 15.11.2017 passed by the learned Civil Judge (Senior Division), Bhiwani in Civil Suit No.9415 of 2014 may be affirmed.

2. Learned counsel for the appellant/defendant submits that there was no occasion for the learned lower Appellate Court to reverse the well-reasoned judgment dated 15.11.2017 of the learned trial Court wherein in Para 11 it has been categorically recorded and admitted that the suit land already stood partitioned between the parties. It is submitted that accordingly, there was no cause or occasion for fresh partition to take place between the parties. Learned counsel contends that the act of construction of houses by the parties upon their respective shares of the suit land, amounts to the parties acting upon the mutual private partition without any kind of opposition since long. It is argued that any fresh partition would only be a formality. Thus, the suit land having already been partitioned, no fresh partition of the same can be ordered. It is reiterated that the Suit land had been mutually partitioned between the parties long ago and the co-sharers are in the possession of their respective shares and had even constructed their houses upon their respective shares. It is accordingly prayed that the impugned judgment and decree dated 13.09.2024 passed by the ld. Additional District Judge, Bhiwani be set aside; and the judgment and decree dated 15.11.2017 passed by the learned Civil Judge (Senior Division), Bhiwani in Civil Suit No.9415 of 2014 may be affirmed.

3. No other argument is made on behalf of the appellant.

4. I have heard learned counsel for the appellant and perused the case file in great detail.

5. The brief facts of the case are that parties to the suit have been jointly owners in possession of Gair Mumkin plot comprised in Khewat No.85/74, Khatoni No.105, Khasra No.91//17/3/1 measuring 3 Kanal 4 Marla situated within the revenue estate of Village Kharak Kalan, Tehsil and District Bhiwani, wherein respondent no.1/plaintiff No.1 is having 9/64 share, respondent no.2/plaintiff No.2 is having 7/64 share and the appellant/defendant is having 3/4th share. It is the admitted case of the parties that no legal partition of the suit property has taken place, even though separate houses have been constructed on the suit property by the parties. Consequentially, the Plaintiffs wanted the suit land to be partitioned as per law; and had accordingly, filed a Suit for Partition bearing Civil Suit No.9415 of 2014, which was dismissed by the ld. Civil Judge (Senior Division), Bhiwani vide judgment dated 15.11.2017. The plaintiffs had filed Civil Appeal No.676 of 2017, which has been allowed by the ld. Additional District Judge, Bhiwani vide impugned judgment dated 13.09.2024.

6. A perusal of the judgment dated 15.11.2017 passed by the learned trial court reveals that the suit of the respondents/plaintiffs was dismissed solely on the ground that "...the suit land stands privately partitioned between the parties. The act of construction of houses in fact amounts to the parties having acted upon mutual private partition without any kind of opposition since long. No doubt Jamabandi Ex.PW1/A does not reflect the said partition, but, the aforesaid reflection would only be a formality, the groundwork already having been done as observed hereinbefore. Thus, the suit land having already been partitioned, no fresh partition of the same can be ordered. "The ld. Trial Court further opined that judgment Ex.D16 "... the said judgment does not in any way operate as res judicata to the present suit which is qua one khewat number only, as was permitted by the Court in Ex. D16."

7. It is the considered view of this Court that in opining as above, the learned trial court lost sight of the fact tha