- (1.) Heard learned counsel for the parties at the admission stage. This is defendants' second appeal arising out of O.S. No.990 of 1997 which was dismissed on 22.11.2007 by Civil Judge, Junior Division, Havali, Varanasi. Against the said decree plaintiffs respondents filed Civil Appeal No.23 of 2008, which was allowed on 29.01.2009 by A.D.J. Court No.9, Varanasi. Judgment and decree passed by the trial court was set aside and suit of the plaintiff was decreed and in the property in dispute plaintiffs' share was declared to be half. As the suit was for partition hence preliminary decree was passed by the lower appellate court.
(2.) Plaintiff respondent No.1 is father and plaintiff respondent No.2 is his son. Similarly, defendant appellant No.1 are father and defendants appellants No.2 & 3 are his sons. Fathers i.e. plaintiff respondent No.1 and defendant appellant No.1 are real brothers. The relationship was admitted by the parties. The trial court dismissed the suit holding that partition had already taken place and parties were in possession of the portions which had come in their shares in the prior partition. Property in dispute is constructed portions and adjoining abadi land.
(3.) The plaintiffs and their witnesses had admitted that for several years the parties were residing in separate portions and they were separate in fooding also. Trial court held that this amounted to prior partition. Regarding the house towards north adjacent to the road Brijmohan plaintiff No.2 stated that the house of Arjun (defendant) which was on the road side was old construction. Lower appellate court placed reliance upon the judgment of this Court Paramjeet Singh Patheja v. ICDS Ltd., 2007 AIR(SC) 168 holding that residing in different portions of joint property does not amount to formal partition.;