Nisha Gupta, J. - (1.) THIS first appeal under Section 96 CPC has been filed against the judgment and decree dated 20.4.95 passed by Additional District Judge No. 1, Ajmer in Civil Suit No. 49/87 (181/87) whereby the suit for partition filed by the plaintiff -appellant has been dismissed.
(2.) THE short facts of the case leading to filing of this appeal are that plaintiff appellant filed a civil suit for partition of the property No. 139/2010 situated at Civil Lines, Ajmer with the contention that it was ancestral property of their grand -father Fateh Lalji, their father Onkar Lal has also constructed a garrage and some other additional construction were also made there. Grand - father and father both expired and hence now the appellant plaintiff and defendants are entitled for equitable partition of the ancestral property and plaintiff appellant has claimed 1/6th share in the ancestral property. The respondents have denied the allegation and submitted that it the property of their father and in the life time of their father in 1951 it has been partitioned and additional constructions have been made by all the share holders which was never objected by the plaintiff appellant. The court below has held that the property is ancestral property but it was partitioned in 1951 and hence the suit for partition is not maintainable and suit has been dismissed, hence this appeal. The contention of the appellant is that there is no evidence to show that the partition has taken place in 1951 and court below has relied upon the contradictory evidence and suit should have been decreed where a specific finding has been arrived at by the court below that appellant is having 1/6 share in the property. It has also been submitted that alleged partition has taken place in 1951 whereas map, Ex. 1 which has been submitted is of 1973. The Commissioner Report has not been considered. Partition has not been done. Land has not been partitioned and if any partition has been arrived at, it is unequal, hence the court below has erred in dismissing the suit whereas the contention of the respondent was that oral as well as documentary evidence has been submitted to show that the property has already been partitioned. There was a verbal partition between the parties which has been acted upon. All the heirs have taken their water and electric connection separately, house tax has been paid in their name and they are in possession of the partitioned shares. Oral partition has been acted upon and court below has rightly dismissed the suit.
(3.) HEARD the learned counsel for the parties. No written submissions have been submitted by counsel for the appellant in spite of asking for the liberty. Perused the judgment and decree under appeal as well as the original record of the case.;