IMPORTANT POINT
Partition – Mere exhibition of marriage card cannot not prove that property was undivided.

JUDGMENT

Instant appeal has been filed by the appellant-plaintiff (for short ‘the plaintiff’) against the judgment and decree dated 23.09.2008 passed by Additional District Judge (FT) No.5, Jaipur City, Jaipur (for short ‘the trial court’) in Civil Suit No.162/2004 (191/2004) titled as Om Narain Sharma Vs. Jagdish Narain Sharma & Ors., by which the trial court dismissed the suit filed by the plaintiff for partition, rendition of accounts, mesne profit, compensation and permanent injunction.

2. Brief facts of the case are that the plaintiff filed a suit for partition, rendition of accounts, mesne profit, compensation and permanent injunction in which he stated that plaintiff and defendant No.1 are co-sharers as the predecessor-in-title Laxmi Narain Sharma left behind two sons namely Shri Narain Sharma and Jagdish Narain Sharma. Jagdish Narain Sharma expired in 1950 and he was survived by present plaintiff. Plaintiff and defendant No.1 were having 1/2 share in the House bearing No.1740, situated in Jat Ke Kua Ka Rasta, Chowkri Purani Basti, Chandpole Bazar, Jaipur. Plaintiff’s father and defendant No.1 had 1/2 share in the immovable property. Plaintiff and defendant No.1 had also agricultural land which was to be divided being ancestral property mentioned in para 2 of the plaint. Defendant No.1 had obstructed the supply of water and also disconnected the electricity of Bathroom. So, plaintiff filed the suit and prayed that property mentioned in para 2A to 2D be divided and injunction be granted in his favour.

3. Defendant No.1 had filed written statement and mentioned that partition was took place on 06.07.1977 and plaintiff as well as defendant No.1 are residing separately. No immovable property was left to be partitioned. So, suit be dismissed.

4. Trial court framed the following issues on the basis of pleadings of the parties:—

(1) Whether property mentioned in para 2 of the plaint is joint undivided property of the parties, wherein the plaintiff and defendant No.1 had 1/2 share?

(2) Whether the plaintiff is entitled to get possession of the property by getting it divided in metes and bound?

(3) Whether the plaintiff is entitled to get permanent and mandatory injunction as claimed in the plaint?

(4) Whether the suit is undervalued?

(5) Relief?

(6) Whether as per the para 13 of the plaint, the plaintiff is entitled to get the rendition of accounts and to get the profitable amount of his share?

(7) Whether the plaintiff is entitled to get Rs.5,00/-per month towards use and occupation charges as per para 14 of the plaint?

(8) Whether this Court had no jurisdiction to hear the suit for division of agricultural land?

5. Learned counsel for the plaintiff submits that the trial court wrongly decided the issue Nos.1 to 3 in favour of defendant No.1 and against the plaintiff. Learned counsel for the plaintiff also submits that by way of evidence, plaintiff had proved the case that property mentioned in para 2 was ancestral property and plaintiff and defendant No.1 both were having 1/2 share in it. Learned counsel for the plaintiff also submits that learned court below wrongly came to the conclusion that partition took place on 06.07.1977. Learned counsel for the plaintiff also submits that defendant in his evidence clearly stated that he had memorandum of the partition but he had not submitted the same in evidence. So, adverse inference be drawn against the defendant. Learned counsel for the plaintiff also submits that witnesses of the defendant Mohan Lal and Kamal Beniwal were interested witnesses and they are friends of defendant’s son. Learned counsel for the plaintiff also submits that the plaintiff had adduced the evidence of Bhagwan Sahai Sharma, Mangilal Sharma, Gori Shankar Sharma, Rajesh Batra, Ram Kishore, Ratanlal Gaur and Hanuman Sahai and they in their statement clearly stated that the partition never took place. Learned counsel for the plaintiff also submits that plaintiff had exhibited the marriage card o