RAKESH KUMAR JAIN,J - (1.) THIS appeal is by defendants No. 1 and 2 against the judgment and decree of both the courts below, whereby suit of the plaintiff for separate possession by partition of the property, namely, House Nos. 4507/2, 4505/2 and 4403/2 situated in Mohalla Chatta Nanu Mal, Patiala is decreed and a preliminary decree is passed declaring the plaintiff and defendants No. 1 and 2 to have 1/3rd share each in the property in dispute and that the plaintiff is entitled to separate possession of his 1/3rd share.
(2.) ON 04-08-1982, the plaintiff filed the suit for separate possession alleging therein that the property in dispute belong to their father Chiranji lal who had died in the year 1954, leaving behind plaintiff and defendants No. 1 and 2 as his sons, defendants No. 3 and 4 as his daughters and Laxmi Devi as his widow. Since the death of Chiranji Lal had occurred before coming into force of the Hindu Succession Act, therefore, only plaintiff and defendants No. 1 and 2 succeeded to the property in dispute in equal shares. It was alleged that their mother Laxmi Devi has also expired. It was claimed in the plaint that the properties of the parties were not partitioned and they were joint. In response to this plaint, defendants No. 1 and 2 filed written statement on 16-10-1982 in which, it was pleaded that only House Nos. 4403/2 and 4505/2 were left joint, whereas, House No. 4507/2 and other joint articles, jewellery etc. were partitioned by way of oral partition. It was further pleaded that the plan of the house was prepared and portions falling to the share of the plaintiff and defendants were earmarked and consequently on 23-04-1976, a memorandum of partition was prepared. It was further pleaded that this partition had taken place amicably to avoid any dispute and to maintain good relations between the family members.
(3.) ON 13-12-1982, replication was filed by the plaintiff to the written statement filed by defendants No. 1 and 2 in which it was denied that any oral partition had taken place. It was denied that any plan was prepared. It was denied that any memorandum of partition was prepared on 23-04-1976.;