C A V Judgment

1. This first appeal has been preferred by the appellant / plaintiff under Section 96 of the Code of Civil Procedure, 1908, challenging judgment & decree dated 15^th January, 2020 passed by 7^th Upper District Judge, Bilaspur (C.G.) in Civil Suit No. 148-A/2015 whereby civil suit filed by appellant / plaintiff for declaration of his joint title, possession and after partition granting him possession of his share, has been dismissed.

[For the sake of convenience, parties would be referred to as per their status shown in the plaint filed before the trial Court]

2. Brief facts of the case are that appellant / plaintiff filed civil suit for declaration of his joint title, partition and possession pleading inter alia that both the parties are Hindu and are family members governed by Hindu Law. Following genealogy tree would demonstrate relationship among the parties:-

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3. Father of the parties namely Sadan Lal Parche was owner of land bearing Khasra No. 47/7, area 0.06 dismil, sheet no. 4/3, Plot No. 75, area

2622 square feet and Khara No. 47/2, area 0.012 hectare situated at Jarhabhata, Patwari Halka No. 31, Bilaspur alongwith house situated over the aforesaid land (henceforth ‘suit property’). After death of Sadan Lal Parche, suit property has been recorded in the joint name of plaintiff (s) and original defendants. No partition was effected between the parties and despite repeated request of plaintiff, defendants declined to grant partition, rather they used to quarrel with him, therefore, plaintiff filed civil suit for declaration of his joint title and possession alongwith defendants and also sought partition and separate possession of his share over the suit property. Earlier, plaintiff had sought 1/5^th share, but during pendency of suit, their mother Smt. Kanti Bai (original defendant No.1 ) and sister Anita Parche (original defendant No. 3) died, therefore, the plaintiff has sought

1/3^rd share in the suit property.

4. Defendants filed their written statements, in which, they did not dispute genealogical tree demonstrated by plaintiffs, they have also not disputed that suit property was owned by their father late Sadan Lal Parche, but they have denied that no partition of their family property / suit property was effected between them, rather they have pleaded that during life time of their father, he had effected mutual - oral partition between both the parties, 25-26 years prior to filing instant civil suit. Thereafter, parties were residing in their respective shares of suit property. They have further pleaded that in that mutual - oral partition effected by their father, both the parties received shares as follow : - (1) suit land bearing Khasra No. 47 7, area 0.06 acres by dividing it into two dismil (0.02 dismil) to each i.e. mother of parties namely Smt. Kanti Bai (original defendant No. 1), sister – Anita Parche (original defendant No. 3) and defendant Yadunandan Parche alongwith portion of house situated in their respective shares were granted to them (2) suit land bearing Khasra No. 47/2, area 0.03 dismil and house situated over it was granted to Shyam Manohar Parche (respondent No. 2 herein) and (3) share of their father – Sadan Lal Parche received to him over his ancestral house situated at Karbala, Juna, Bilaspur and shop named & styled as “Jai Maa Sharda Spare Parts”, now renamed as “Maa Sharda Automobiles” situated at Seepat Road, near Vasant Vihar Gate, Bilaspur, was granted to plaintiff – Hanuman Prasad Parche, he is also in possession of dilapidated house situated at Karbala, Juna, Bilaspur. After partition, parties were possessed and residing in their respective shares. Thus, since partition was already effected between the parties, therefore, subsequent partition cannot be effected. Hence,