38. In the cross-examination, PW1 deposed that he has
completely gone through his affidavit of evidence exbt-
PW1/A. PW1 further deposed that defendant no.1 i.e., Shri.
Babulal was not alive on the date of filing the present suit.
PW1 further deposed that he was aware of the fact that Shri.
Babulal was not alive at the time of filing of the present suit.
PW1 further deposed that Smt. Geeta who is defendant no.2
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
79. Admittedly, the plaintiff is in possession of first and
second floor of the suit property and according to the
defendant no.1A and 1B the first and second floor have come
to the share of the plaintiff by way of oral partition, though
oral partition is not proved as discussed above. Therefore, the
plaintiff is entitled for a decree of permanent injunction
thereby restraining the defendant no.1A and 1B, 2(a) to 2(d),
3 to 5 in suit Ved Prakash vs. Babu Lal (Since deceased) &
Ors. from creating any third-party interest in any manner in
the first and second floor of the suit property bearing No.
129/14, Amrit Puri, Garhi, East of Kailash, New Delhi
(Khasra No. 147, Garhi Jharia Marhi measuring 100 sq.
yards). Hence, this issue is decided in favour of plaintiff (Ved
Prakash) and against the defendants.
74. The Hon'ble Supreme Court of India in Vineeta
Sharma v. Rakesh Sharma & Ors. (supra) has held that only in
exceptional cases where the plea of oral partition is supported
by public documents and partition is finally proved in the
same manner as if it has been affected by a decree of a court
only then it may be accepted, however, mere plea of partition
based on oral evidence alone cannot be accepted and to be
rejected outrightly. In the case in hand in order to prove the
oral partition defendant no.1A and 1B have relied upon
electricity bill dated 09.06.2018 Ex.DW1/B, water bill dated
11.10.2010 Ex.DW1/C, construction material slip dated
02.05.2012 Mark A1 and payment made to labour for
construction of third floor Mark B1.
not impleaded in the suit, therefore, no effective decree could
have been passed in their absence. Hence, relying upon
Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Behdi
(supra) this court is of the considered view that in the absence
of Sh. Narayan Das, husband of defendant no.2, no effective
decree can be passed. Hence, this issue is decided in favour of
defendant no.1A and 1B and against the plaintiff.
Issue No.7
burden to prove oral partition lies on them. The Hon'ble
Supreme Court of India in Vineeta Sharma v. Rakesh Sharma
(supra) has held in para no.129(v) as under:-