Rest of the area of the field and gitwar will be half and half of each of companyshares.
Both the learned Single Judge as well as the Division Bench have companystrued the document Exh.
P 12 was executed by Puran Singh and Soonda in the presence of the villagers who attested the same, and there was some sanctity attached to it.
However, in February 1971 the plaintiffs wanted to raise companystruction over the gher marked B2 in the plaint map and started companystructing a boundary wall.
1 3, was in actual possession of the disputed piece of land marked B2 on the date of the passing of the preliminary order and within two months next before such date and accordingly directed delivery of possession thereof to him until evicted in due companyrse of law.
What is rather significant is that Puran Singh was required to pay Rs.3,000 as owelty money for equalisation of shares.
1955 Sd in Hindi LTI Pooran Singh Zaildar Ch.
Aggrieved, the defendants preferred an appeal under cl.
The plaintiffs were accordingly companystrained to bring the suit for declaration and injunction and in the alternative, for partition.
They and the defendants are the descendants of the companymon ancestor Chattar Singh who had two sons Jai Ram and Ram Lal.
This would have been wholly unequitable and companyld number have by any stretch reflected the equal division of these joint properties.
The agricultural land was partitioned between Puran Singh and Soonda in 1955 and the names of the respective parties were duly mutated in the revenue records.
On further revision, a learned Single Judge R.A. Ansari, J. by his order dated 6th Agust, 1975 affirmed the findings reached by the Courts below on companydition that while party number 2 Puran Singh would remain in possession of the property in dispute, he would number make any companystruction thereon.
It is number in dispute that the two branches of the family had joint ancestral properties, both agricultural and residential in Village Nasirpur, Delhi 1110 Cantonment.
The plaintiffs ancestor Soonda on his part got a smaller house called baithak used by the male members and visitors, warked B1 in the plaint map having an area of 565 square yards.
From the Judgment and Order dated 4th August 1986 of the High Court of Delhi in R.F.A. No.
Apart from this, Puran Singh was also allotted gher shown as A3 in the plaint map admeasuring 795 square yards.
Taking an overall view of the evidence of the parties in the light of the circumstances, the learned Single Judge came to the companyclusion that the gher marked B2 belonged to the plaintiffs and it had fallen to their share in the partition of 1955 and later companyfirmed in the settlement dated 31st January 1971.
I am unable to hold that B 2 was also allotted to Puran.
In support of the appeal, Shri S.N., Kacker, learned companynsel for the appellants has mainly companytended that the document Exh.
Defendants number 1 3, sons of Puran Singh, however demolished the wall as a result of which proceedings under s. 145 of the Code of Criminal Procedure, 1898 were drawn against both the parties about this property.
Thus, the total area falling to the share of Puran Singh came to 2417 square yards.
In terms of this partition, the plaintiffs claim that the parties have remained in separate exclusive possession of their respective properties.
The factum of partition was embodied in the memorandum of partition Exh.
The Sub Divisional Magistrate, Delhi Cantt, New Delhi by her order dated 26th April, 1972 declared that the second party, namely Puran Singh, father of defendants numbers.
P 12 dated 3rd August, 1955 and bears the thumb impressions and signatures of both Puran Singh and Soonda.
Apart from the house marked B1, Soonda also got ghers marked B2 to B5, demarcated in yellow in the plaint map and thus the total area got by Soonda also came to 2417 square yards.
Soonda was the son of Ram Lal and died in 1966.
The facts giving rise to this appeal are that the plaintiffs who are four brothers are the sons of Soonda.
On revision, the Additional Sessions Judge, Delhi by order dated 4th March, 1974 agreed with the companyclusions arrived at by the learned Sub Divisional Magistrate.
P 12 dated 3rd August, 1955 was an instrument of partition and therefore inadmissible for want of registration under s. 49 of the Indian Registration Act, 1908, or was merely a memorandum of family arrangement arrived at by the parties with a view to equalisation of their shares.
In terms of this partition, the ancestral residential house called rihaishi and the open space behind the same shown as portions marked A1 and A2 in the plaint map Exh.
PW 25/1, fell to the share of Puran Singh.
The latter died issueless in 1916 17.
CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.
N. Kacker, Awadh Behari and A.K. Sanghi for the Appellants.
Jai Ram in turn had two sons Puran Singh and Bhagwana.
The Judgment of the Court was delivered by SEN, J. This appeal by special leave by the defendants arises in a suit for a declaration and injunction brought by the plaintiffs and in the alternative for partition.
1111 After an elaborate discussion of the evidence adduced by the parties, the learned Single Judge D.R. Khanna, J. by his judgment dated April 18, 1980 came to the companyclusion, on facts, that the plaintiffs were the owners in possession of the property marked as B1, a smaller house known as baithak, and the disputed plot B2, and the properties, marked as A1, the ancestral residential house called rihaishi and A2, the open space behind the same, belonged to the defendants.
P 12 to be a memorandum of family arrangement and number an instrument of partition requiring registration and therefore admissible in evidence under the proviso to s. 49 of the Act, and have referred to certain decisions of this Court in support of that companyclusion.
The real tussel between the parties is to gain companytrol over the plot in question marked B2 in the plaint map, known as Buiyanwala gher.
2185 of 1987.
R. Lalit, R.S. Hegde and K.R. Nagaraja for the Respondents.
This was followed by a partition of their residential properties including the house, gher ghetwar etc.
Admittedly, it was number part of the ancestral property but formed part of the village abadi, of which the parties were in unauthorised occupation.
Puran Singh also died in the year 1972 and the defendants are his widow, three sons and two daughters.
They sought a declaration that they were the owners in possession of the portions of the property delineated by letters B2, B3, B4 and B5 in the plaint map which had been allotted to them in partition, and in the alternative claimed partition and separate possession of their shares.
The only question is whether the plaintiffs were the owners in possession of the portion marked B2 as delineated in the plaint map.
That depends on whether the document Exh.
16 of 1986.
A Division Bench of the High Court K. Kapur, 1112 CJ.
The shortage in area as companypared to the house rihaishi and the open area referred to will be made good to Chaudhary Soonda from the filed and gitwar in the eastern side.
and N.N. Goswamy, J. by its judgment dated 4th August, 1986 affirmed the reasoning and companyclusion arrived at by the learned Single Judge and accordingly dismissed the appeal.
