Full Judgment
M.Y. Eqbal, J.
1. This, second appeal by the defendants-appellants is against the judgment of reversal. Suit filed by the plaintiffs-respondents being Partition Suit No. 58 of 1982 for decree of partition was dismissed by the trial Court, but the same was allowed in appeal by the appellate Court in title Appeal No. 35 of 1985.
2. Plaintiff-respondent No. 1 is Tapsi Ram and plaintiff No. 2 is his wife Agnijot Devi. In the said suit, plaintiff No. 1 claiming to be a co-sharer, sought for partition in respect of his share in the suit property, whereas in the said suit plaintiff No. 2 claimed to have right, title and interest in respect of the portion of the property which she alleged to have purchased from one of the co-sharers defendant No. 3. According to the plaintiffs, there had never been partition among the heirs of Dukhbhajan Kahar and the parties are still joint. Plaintiff No. 1 claimed 1/9th share in the suit property. Defendant Nos. 1 to 3 contested the suit by filing written statement stating, inter alia, that the suit was brought by the plaintiffs only with a view to get a declaration of title in respect of portion of the land alleged to have purchased by plaintiff No. 1 in the name of plaintiff No. 2 from the husband of defendant No. 3. Further case of all these defendants are that there had been partition by metes and bounds long back and the parties are coming in possession of their respective shares in the suit property and there is neither any unity of title or unity of possession.
3. The trial Court after appreciation of entire evidence, has recorded a conclusive finding that there had been partition of suit property by metes and bounds and parties have been exercising their title and possession over their respective shares by disposing of their shares to different persons. Accordingly, the trial Court dismissed the suit. The appellate Court, however, reversed the finding and held that the parties are still joint and there had never been partition of the suit property. The appeal was, accordingly, allowed and the finding recorded by the trial Court was reversed.
4. I have heard Mr. Manjul Prasad, learned Counsel appearing for the appellants and Mr. L.K. Lal, learned Counsel appearing for the respondents.
5. The appeal was admitted on 20.3.1990 for hearing on the following substantial question of law:
Whether the learned Court of appeal below has erred in reversing the judgment and decree passed by the trial Court without meeting its reasonings?
6. The admitted facts are that only three co-sharers, namely, defendant Nos. 1 to 3, contested the suit by filing written statement. Defendant No. 4 filed separate written statement stating that he has already sold his share to different persons and therefore, he has no interest in the suit property. Another important fact is that plaintiff No. 1 purchased the share of Jaddu, husband of defendant No. 3, who was one of the co-sharers. The sale-deed dated 20.6.1972 has been proved and marked as Ext.-B. The said-sale deed was, however, cancelled by defendant No. 3 by executing deed of cancellation dated 29.6.1972 but not on the ground that the property is joint, rather on the ground that consideration amount was not paid. In the sale-deed by which defendant No. 3 sold the land allotted to him, it is clearly mentioned that the suit properties were partitioned long back by metes and bounds and all co-sharers have been coming in separate possession of their respective shares. In the aforesaid premises, the claim of plaintiff No. 1 that the suit property is still joint is devoid of any merit. Besides that, in the partition suit, the plaintiff No. 1 joined his wife as plaintiff No. 2 and sought a title over the portion of the land purchased by him in the name of his wife from defendant No. 3 by the sale-deed (Ext. B). The Court of appeal below has not at all considered these aspects of the matter which are the strongest piece of evidence of partition between the parties. For the said reason alone, the finding recorded by the appellate Court cannot be sustained in law and the same is liable to be set aside.
7. For the aforesaid reasons, this second appeal is allowed and the impugned judgment and decree and that of the trial Court is restored.