DEOKI NANDAN, J. - (1.) THIS is a defendant's second appeal in a suit for partition of two sets of property situate adjacent to each other and for demolition of a certain construction, which was in the course of being made,, on the north-western side of the northern set of the property.
(2.) THE following are the allegations in the plaint, The parties belonged to the same family, the plaintiff being the son of Salik and the defendants being the sons of Salik's brother Harhangi. The entire property was joint in which the plaintiff on the one hand and the defendants on the other had a 1/2 share each. For some years past they were separate in mess and residence and were living in separate portions of the houses according to their con­venience, but there was no regular partition between them and the entire property was the joint property of the parties. A rough site plan was drawn, up at the foot of the plaint with allegation that, if necessary, a plan made on scale, will be produced later on. This is followed by the allegation that at the place ka, which is on the north-western corner of the northern one of the two sets of property, there was originally marhai belonging to the plaintiff, which fell down a few months ago, but he could not construct it so far. A few days ago, the plaintiff wanted to place another marhai at that place, but the defendants stopped him from doing so, and that was not all. On 26-1-1967 they started a fresh construction at that place and want to speedily build it. The plaintiff requested them to separate his share by partition before raising any constructions, but they paid no heed, hence the suit. The cause of action was said to have arisen on 26-1-1967. In defence, the relationship between the parties was admitted. The other allegations about separate living, but the property being joint, were not admitted in the form in which they were stated, and the map at the foot of the plaint was said to be incorrect and the rest of the allegations were denied as wholly incorrect. In the additional pleas it was asserted that the plaintiff way not entitled to partition of the property in suit. It was said that although the parties are descended from the same common ancestor, there was a separation between them more than 25, years ago and their parents had already divided the ancestral house and the land etc., appurtenant thereto, but the partition being oral, although each party was in possession over its portion, the plaintiff raised a dispute in the year 1954 and in that context certain respectable persons were collected and they justly divided the ancestral property between the plaintiff and the defendants in accordance with their respective shares, which they accepted and executed an agreement which contained a memorandum of the partition arrived at between them. It was signed by the parties and a copy thereof was given to the plaintiff and another to the defendants. The parties have continued to be in separate and exclu­sive possession of the property in their respective shares and had no connection with each other. The defendants made new pucca constructions at con­siderable expense on substantial portions of their property. No ancestral property, situate in the abadi, was left joint between the parties and there was no question of a fresh partition. This is followed by the further allegations that to the north and north-west of the defendants' bardaur there is a plot No. 292 which was a Garha. Its present number is 24 Kha. After partition, the defendant has obtained the south-western part of the garha from the concerned Zamindars and had started cultivating it and plot No. 292 area 265, became the tenancy of the defendants' father and later on their sirdari. After the partition the defendants and their father acquired considerable agricultural land and their cultivation came to be carried on a large scale. They have been keeping about 20 heads of cattle, And when the ancestral house, the bardaur the marhai etc. which they had received on partition, became insufficient for their needs, they levelled up a part of the graha at considerable expense and constructed marhais thereon which had been at that place for some 12 years, and the land at that place and between the marhais was used by the defendants as their sahan, and in this manner the defendants had been using the entire area of plot No. 292/2 as their abadi for more than 12 years past. Some parti land was situate to the south of plot No. 292 within the abadi. The defendants secured it from the concerned Zamindars and used it for making uplaas (cow dung cakes) etc. The plaintiff had no marhai to the west of the defendants' bardaur, nor did he get any marhai at that place, nor did he have any connection with the site of the defendants' marhais, nor was the land ever ancestral between the parties, nor was there any question of its partition. This is followed by the allegation that the plaintiff had even filed an objection along with certain other parsons in respect of the land of plot No. 292/2 in consolidation of holdings proceed­ings. This was decided in favour of the defendants by the consolidation authorities. The plaintiffs' claim was barred by Section 49 of the U. P. Consolidation of Holdings Act, and the civil Court had no jurisdiction. There are certain other allegations about the occurrence of a fire in the marhais during February 1967 which are not very relevant at this stage. The true fact was said to be that the plaintiff had, in the course of re-constructing his western marhai, encroached upon some land in the defendants' possession which led to a dispute between the parties and the suit was the result of the enmity.
(3.) THE plaintiff filed a replication. He denied the allegation that there was any partition 25 years ago, or at any time, between the parties. He also denied the family settlement of 1954 and the agreement said to have been executed between them it was in that context further alleged that the parties were litigating in Suit No 444 of 1953 in which a compromise was arrived at on 21-11-1954, and the alleged agreement of 1954 was fabricated with the help of thumb impressions of the plaintiff taken on a number of papers in that context. The agreement was also said to be inadmissible for want of registra­tion on the allegation that the value of the property, said to have been partitioned was not less than Rs. 1000/-. It was further alleged that no effect was given to the agreement and the parties continued to be in joint possession of the property. The allegation of raising fresh constructions by the defendants was denied and it was further alleged that the parties had jointly raised abadi on garha of plot No. 292/2, of which they were joint Sirdar and which was held to be joint in the said Suit No. 444 of 1953 and in which the parties were given 1/2 share each. About the parti land in the -abadi to the south of plot No. 292/2 also it was said that it was jointly acquired by the parties and was in their joint possession. The marhai in suit was claimed to be that of the plaintiff and it was re-asserted that the plaintiff wanted to re-construct it and the allegations to the contrary were wrong. The entire property in suit was said to be joint and in joint possession of the parties. The allegations about the plaintiff having encroached upon the land in possession of the defendants or there being any dispute about it, was •denied.;