JUDGMENT :

Alka Sarin, J.

The present appeal has been preferred by defendant No.1- appellant challenging the concurrent findings returned by the Trial Court vide judgment and decree dated 29.09.2017 and the First Appellate Court vide judgment and decree dated 20.12.2023.

2. Brief facts relevant to the present lis are that the plaintiff- respondent Nos.1 and 2 herein filed a suit for separate possession of 1/3rd share by way of partition by metes and bounds of land measuring 2 kanals comprised in Khasra No.48/1 marked as ABCD in the site plan as per the jamabandi for the year 2010-2011 situated in the revenue estate of village Dhariwal, Hadbast No.350, Tehsil and District Gurdaspur. It was averred in the plaint that the land measuring 2 kanals was originally owned by Sadhu Singh son of Harnam Singh and Dalip Singh son of Harnam Singh to the extent of 1/6th share each; Partap Singh son of Jhanda Singh and Daljit Singh son of Jhanda Singh to the extent of 1/3rd share each. Sadhu Singh died and after his death his estate devolved upon his sons Joginder Singh, Gurwinder Singh and Lakhwinder Singh to the extent of 1/18th share each. Similarly, Partap Singh son of Jhanda Singh also died and his estate devolved upon his sons Sohan Singh and Surjit Singh to the extent of 1/6th share each. Likewise, Daljit Singh son of Jhanda Singh also died and his estate devolved upon his sons Balwant Singh and Harbans Singh to the extent of 1/6th share each. It was the case set up by the plaintiff-respondent Nos.1 and 2 that thereafter Joginder Singh, Gurwinder Singh and Lakhwinder Singh sons of Sadhu Singh sold their 1/6th share out of the suit land in favour of the plaintiff-respondent No.1 vide a sale deed dated 12.12.2012 and Harbans Singh son of Daljit Singh son of Jhanda Singh sold his 1/6th share in favour of the plaintiff-respondent No.2 - Jaswinder Kaur - vide a sale deed dated 12.12.2012 and thus by virtue of above said sale deeds the plaintiff-respondent Nos.1 and 2 had become owners in possession to the extent of 1/3rd share in the suit land. It was further the case that Sohan Singh and Surjit Singh sons of Partap Singh had also executed a sale deed qua their 1/3rd share in favour of defendant No.2 - Ranjit Kaur (respondent No.3 herein) - vide a sale deed dated 12.12.2012 and as such she had also become co-sharer in the suit property to the extent of 1/3rd share. Likewise, Dalip Singh son of Harnam Singh sold 1/6th share to defendant No.1-appellant vide a sale deed dated 09.06.2011 and Balwant Singh son of Daljit Singh also sold 1/6th share in favour of defendant No.1-appellant vide a sale deed dated 03.12.2012 and thus defendant No.1-appellant also became co-sharer to the extent of 1/3rd share in the suit land. Mutations were also sanctioned. It was further the case in the plaint that the property was gair mumkin property and most of it was under construction and only one vacant plot shown by letters JKLM in the site plan was in actual physical possession which was situated between the houses of defendant Nos.1 and 2 from which they were not deriving any benefit. Hence the partition was sought.

3. Defendant No.1-appellant contested the suit whereas defense of defendant No.2 (respondent No.3 herein) was struck off.

4. The suit was contested by defendant No.1-appellant raising preliminary objections regarding maintainability, cause of action, etc. On merits it was admitted that the property was previously owned as stated in the plaint. However, defendant No.1-appellant denied any sale deed in favour of the plaintiff-respondent Nos.1 and 2 and stated that there was no such sale-deed and it was not binding upon the right of defendant No.1-appellant. It was the case set up by defendant No.1-appellant that Sadhu Singh and Dalip Singh sons of Harnam Singh had sold their share out of the suit land measuring 14 marlas in favour of her husband in the year 1985 and in token of the transaction, one writing was also executed. Thereafter, in the year 1996,