- (1.) By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, this Second Appeal has been filed by the original Plaintiff. Being aggrieved by the Judgment dated 2nd of March, 1990, passed by the learned Additional District Judge, Amravati in Regular Civil Appeal No. 57 of 1989, whereby he dismissed the appeal and confirmed the Judgment and decree passed by the trial Court dismissing the suit of the plaintiff for partition and separate possession of his share in the suit house.
(2.) The relevant facts are required to be stated as under :-- The plaintiff filed a suit for partition and separate possession of his share. It is contended that the plaintiff had purchased the suit house out of the income of ancestral joint family property. The joint Hindu family owned 234 acres of agricultural land and same was subject matter of partition between the plaintiff and defendant and their sons and the property i.e. Agriculture land was partitioned vide registered partition deed dated 14-3-1959. The suit house was not partitioned in between the parties and it is in their joint possession. The plaintiff and defendant are the real brothers. The plaintiff contended that one room out of the suit house is in his possession and rest of the rooms of the suit house are in possession of the defendant. The plaintiff claimed and demanded his half share in the suit house but the defendant refused to give the same and therefore the plaintiff had filed suit for partition and separate possession of his share in the suit house. The defendant resisted the claim of the plaintiff by filing written statement and contended that the suit for partial partition of the properties is not maintainable. He is in exclusive possession of the suit house and the partition deed dated 14-3-1959 was nominal and bogus and it was executed with a view to protect the property of their joint family from the ceiling legislation. The defendant contended that there was no partition at all of any of the properties belonging to the joint family. The defendant further contended that the entire joint family property has not been brought into the common hotchpotch by making partition by metes and bounds and therefore the suit is bad. The defendant contended that the title to the suit house is entered in the name of defendant alone in the year 1936, and thereafter, from 1971-72 the same is transferred in the name of Ambadas who is his son. The defendant has also taken a plea that he has acquired title to the suit house by virtue of adverse possession. The trial Court on the aforesaid pleadings framed the issues and parties adduced evidence on record in support of their contentions. The trial Court on considering evidence and on hearing the parties, had recorded the findings that the suit house is liable to be partitioned, but the suit is bad for not impleading necessary parties and moreover suit for partial partition is not tenable in respect of the isolated property without bringing into the common hotchpotch the entire house property owned by the joint family. He negatived the contention of the defendant that he became owner of the suit house by adverse possession and that the plaintiff has got his half undivided share in the suit house. Consistent with these findings the trial Court dismissed the suit. Being aggrieved by the judgment and decree passed by the trial Court the plaintiff carried appeal to the District Court. The learned Additional District Judge on hearing learned counsel for the parties and on appreciation of the evidence dismissed the appeal. This judgment of the appellate Court is under challenge in this second appeal.
(3.) Mr. Gordey, the learned counsel for the plaintiff contended that there is concurrent findings of both the Courts that the plaintiff is entitled to one half share in the suit house and therefore simply because the entire joint family property was not made subject matter of the suit for partition, it cannot be said that the plaintiff is not entitled to decree for partition, so far as the suit house is concerned. He contended that there was no necessity to bring into common hotchpotch the entire joint family property. He contended that as per Article 333(3)(i) of the Hindu Law by Mulla, 16th Edition, the general rule is that where a suit for partition is brought by a coparcener against the other coparceners, it should embrace the whole family property. This rule is subject to certain qualifications. He contended that the suit for partial partition, brought by a coparcener against other coparcener is perfectly maintainable due to exceptions provided to the general rule. He contended that it is not in dispute that the suit house was not the subject matter of the partition, said to have been effected on 14th March, 1959 by virtue of partition deed. Therefore, the general rule does not apply to the property held by tenants in common. He contended that by virtue of partition deed dated 14-3-1959, mostly the agricultural lands owned by the joint Hindu family were partitioned and in such circumstances it was not necessary for the plaintiff to include the other house property situated at Pimpalkhuta in the suit for making them subject matter of partition. He contended that admittedly the plaintiff has a half share in the suit house and it is a joint family property and it is also not in disputed that the plaintiff and the deceased defendant Shrawan are the heads of their branches.;