Gaya Prasad Singh and Another vs Virendra Singh and 2 Others

Learned counsel for the defendant-appellants submits that both the plaintiff-respondents have been using disputed site as a residential abadi land, which they got from their ancestors. The genealogical phases have also been given in the plaint, which is not disputed by the defendants. The parties are owner and in possession on the disputed site since before the abolition of zamindari system. The parties are real cousins and belong to same family. He further submits that learned trial court dismissed the suit of the plaintiff(s) filed for partition of the property, which was jointly held by the parties, but the defendant(s), feeling aggrieved by the judgment of trial court, filed a Civil Appeal No. 88/10 against judgment and order dated 06.10.2010 passed by learned Civil Judge, Senior Division, Court No. 15, Sultanpur, which has been allowed vide impugned judgment and order dated 30.08.2025 by District Judge, Sultanpur and judgment of trial court has been set aside. The first appellate court has passed the decree to the effect that "it is declared that as per the admitted pedigree, the plaintiff shall be entitled to 1/2 (one-half) share and the defendants shall be entitled to the remaining 1/2 (one-half) share in the disputed property."

¶11

Learned counsel for the defendant-appellants further submits that the private partition was effected between the parties more than decades ago

¶12

SAPL No. 185 of 2025

¶13

2

¶14

and the parties are in possession on their respective share since time of their predecessor-in-interest and at this juncture, the plaintiff-respondents filed a suit for partition in the year 1998 as Suit No. 209/1998, wherein the plaintiffs have concealed the land held by them in possession and thereby they seek partition of the property, which is mainly lying in share of defendant(s), therefore, any partition in pursuance of appellate decree is detrimental to the interest of defendant-appellants.

¶15

Per contra, learned counsel for the plaintiff-respondents submits that from perusal of the commission report, which is judgment confirmed by the court subject to evidence, the share of defendants appears to be more than that of plaintiff(s). In plaint, over the disputed property, two houses of the defendant(s) and only one house of plaintiff(s) are shown. When the plaintiff(s) were beginning the foundation to construct a new house in the southern side of the disputed land, the defendant(s) objected and interfered in peaceful possession of the plaintiff in the site of construction, which required filing of present appeal. No portion by metes and bounds have been ever effected between the parties and they are occupying the property in dispute according to convenience for long time.

¶16

The appeal is admitted on following substantial questions of law:-

¶17

(i) Whether the finding(s) of learned first appellate court are against the evidence adduced by the parties and perverse, which requires interference in second appeal by this Court ?

¶18

(ii) Whether the plaintiff(s) suit was maintainable for partition on the ground that no partition by metes and bounds was ever been effected between the parties and the parties were residing at disputed place since the time of their ancestors on the basis of convenience?

¶19

(iii) Whether the private persons' land can be included in ancestors property without framing the issues relating to title or possession over the private land as pleaded by the defendant-appellants?

¶20

(iv) Whether the second appeal can be preferred against the decree of partition of appellate court in absence of any final decree?

¶21

SAPL No. 185 of 2025

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3

¶23

Admit.

¶24

Summon the lower court record, which shall be produced before this Court within two weeks.

¶25

Steps within a week.

¶26

List on 09.12.2025 for hearing.

¶27

Objection/counter affidavit, if any on grounds of appeal, may be filed before the next date.

¶28

Till the next date of listing, the parties shall maintain the status quo on the disputed property as exists today.

¶29

(Ram Manohar Narayan Mishra,J.)

¶30

October 30, 2025

¶31

Raj

¶32

Digitally signed by :- RAJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

Gaya Prasad Singh and Another v. Virendra Singh and 2 Others

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Gaya Prasad Singh and Another v. Virendra Singh and 2 Others

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