Mere separate living in the same house by the co-sharers does not amount to partition or any settlement for independent dealing with their shares.

( 1 ) THIS appeal has been preferred against the judgment and decree dated 23-12-1992 passed by the Vth Additional District Judge of Bhind. The trial Court had directed granting permanent injunction restraining the defendants from interfering in the possession of the plaintiff's share in the disputed house.

( 2 ) THE plaintiff/appellant had filed a civil suit before the trial Court for partition of the House specified in the plaint, situate in the town of Bhind. The plaintiff was claiming 1/4th share in the said house. The plaintiff alleged that this house was purchased in the year 1947 by his father. His father had died. The plaintiff and his three brothers, who are respondents, had equal shares of l/4 in the said house. After sometime, the living of the plaintiff and his brothers was separated and they continued to live in separate portions of the same house for quite sometime. Later on one of the defendants mortgaged his share in the same house by mortgage-deed dated 17-4-92 to one Shri Prakash Shivhare and put him in possession. The dispute arose later on in respect of the living and dealing with the portions of the same house. The plaintiff was aggrieved of his possession being interefered with by the defendants, and filed a suit for partition.

( 3 ) THE defendants filed written statement alleging therein that in view of the oral family settlement the house was divided in four separate portions and four brothers had started living separately and dealing with their shares independently since then. The contention of the defendants was that since the co-sharers had divided the house in different portions and were dealing with their shares independently, it will be deemed to be a family settlement and no partition was needed by metes and bounds. It was further alleged that one of the co-sharers mortgaged his portion to the mortgagee by registered mortgage deed dated 17-4-1982 dealing the same as his independent portion and the suit for partition was not maintainable.

( 4 ) THE trial Court framed necessary issues on the point of family settlement and held that four brothers were living separately in the same house for quite some time, one of them had mortgaged his portion on 17-4-1982 as such it will be deemed that there was a family settlement, hence the suit for partition was uncalled for and was not maintainable. With these findings the trial Court dismissed the suit for partition and granted injunction only in respect of interference in the shares of the parties.

( 5 ) I have heard Shri N. K. Jain, learned counsel for the appellant/plaintiff, and S/shri R. A. Roman and V. S. Chaturvedi learned counsel for the defendants/respondents and examined the trial Court's record.

( 6 ) THE first point which arises for consideration in this appeal was as to to whether there was any family settlement between the parties in the year 1947 and they were living separately and dealing with their shares independently since then.

( 7 ) ON this point, oral evidence led by the plaintiff was material. P. W. 1 Roopchand, S/o Motilal P. W. 2 Hajarilal, P. W. B Dharamchand and P. W. 4 Phoolchand Jain had categorically stated that there was no partition of the house between the co-sharers. The four brothers were no doubt living separately in separate portions of the same house, but they were not dealing with their shares independently. There was no family settlement in that respect at any point of time.

( 8 ) ON the other hand, defendants witness D. W. 1 Anand Kumar Jain had no knowledge in respect of the family settlement. He stated that he was born later on and he had simply heard that there was a settlement to live separately in the same house. He had no idea as to when any settlement had taken place. D. W. 2 Phoondilai had simply stated that a settlement had taken place sometime in the year 1947, but he had not joined the settlement process. Further he had admitted that the plot was purchased by the father of the parties and h