Hon’ble Shishir Kumar, J.—This is the defendant’s second appeal arising out of a suit for injunction restraining the defendant from interfering in possession of the property, mentioned in the Schedule-’A’ of the plaint.

2. The allegation made in the plaint by the plaintiffs / respondents is that house in dispute was orally partitioned between the defendant / appellant and his two real brothers Anil Kumar and Shushil Kumar Saxena, according to which north portion of the property, described in Schedule -Ka of the plaint, has fallen into the share of Shushil Kumar Saxena. It has been sold subsequently to the plaintiffs vide registered sale-deed dated 30.5.1997 and possession of that has already been delivered to them. It was further alleged in the plaint that a stair case (Zina) had fallen into the share of Shushil Kumar Saxena, which also form part of the sale-deed. In respect of stair case, the defendant was granted a licence for a period of 2-3 years, which has subsequently been revoked by a notice, but inspite of alleged revocation, the defendant / appellant did not stop using stair case, therefore, the plaintiffs prayed for a decree of injunction against the defendant restraining him from using the stair case and for delivery of possession of the portion on the first floor of the house.

3. The defendant / appellant filed a written statement denying the alleged partition as well as grant of licence. It was specifically pleaded that vide sale-deed dated 30.5.1997 an unpartitioned share had been transferred by Shushil Kumar Saxena in favour of the plaintiffs and parties were residing according to their convenience as co-sharer of the property. The plaintiffs have brought on record an alleged partition deed dated 16.9.1996, as if the terms of the oral partition has been recorded in the said deed. According to the appellant, the said document has completely been ignored by both the Courts on the ground that same was inadmissible in evidence, as such, alleged oral partition formed the basis of the decree impugned. The plaintiff / respondent No. 1, who examined himself as PW-1, has admitted that the disputed stair case was the only stair case which was being used by the defendant / appellant since the purchase of the house. DW-1 has also been examined and he has denied the validity of the alleged partition deed dated 16.9.1996 and also the signature thereon.

4. The trial Court vide judgment and order dated 30.9.2010 decreed the suit. The appeal filed by the defendant / appellant has been dismissed vide judgment and order dated 9.3.2011.

5. Sri Kshitij Shailendra, learned counsel for the appellant submitted that both the Courts have committed an error apparent on the face of the record in ignoring this aspect of the matter that there was no partition strictly in accordance with law by metes and bounds, therefore, in case one of the co-sharer sold the property, he cannot claim an exclusive share of the said property. If the Court below have ignored the partition deed, which was inadmissible in evidence, there was absolutely no justification to decree the suit. Further submission has been made that both the Courts below have committed error apparent on the face of the record in not understanding the nature of the case as well as transfer of rights, governed by the law of partition and Transfer of Property Act. Admittedly, appellant is co-owner of the property alongwith his two real brothers, therefore, in absence of a valid partition deed by metes and bounds the sale-deed dated 30.5.1997 could be in respect of unpartitioned share of one of the co-owners, namely, Shushil Kumar Saxena, therefore, the suit about specific portion of the properly jointly owned by three real brothers was not maintainable. It is an admitted case of the parties that the defendant / appellant was residing on the first floor of the house and disputed stair case was the only stair case in existence in the house, which was being used by the defendant/appe