- (1.) G. S. N. Tripathi, J. This appeal has been directed and the concurrent judgment of the courts below, whereby the plaintiff's suit has been decreed and the 1st appeal filed by the defendant has been dismissed by the IVth Addl. District Judge, Ballia, vide his judgment and decree dated 5. 10. 78.
(2.) THE plaintiff respondent filed O. S. No. 47/74 for partition of the dis puted house. Admittedly, Pt. Pashupati Misra was the father of the plaintiff No. 1 and grandfather of defendants 1 and 2 Pt. Pashupati Misra had two sons - Brahm Dutt Misra and Vishnu Dutt Misra, defendants 1 and 2 are the sons of Vishnu Dutt, deceased. According to the plaintiffs, the disputed property was self-acquired property of Pt. Pashupati Misra and after his death, both the sons - Brahm Dutt and Vishnu Dutta, father of respondents (deceased) had acquired interest and they are in possession accordingly to the extent 2 j share each but there was no partition by metes and bounds. Of late, the defendant had disputed the joint possession of the plaintiff and their interest. THErefore, the suit was filed for the reliefs aforesaid. The defence mainly is that the suit property had already been parti tioned amongst the members. A memorandum of the same was prepared on 21. 6. 72 There is nothing joint now. In the western portion allotted to the defendants, they have raised new constructions after investing about Rs. 10,000. Therefore, the plaintiff had felt aggrieved about it and had filed a suit for partition, which is wrong. It is further bad for partial partition, estoppel and acquiescence etc. The learned Munsif framed the following issues: (1) whether the disputed property had been partitioned between the parties? (2) whether the suit is barred by principle of estoppel and acquiscence? (3) whether the suit is bad for partial partition ? (4) whether the plaintiff is entitled to any relief? and (5) whether the court-fee paid is insufficient and the suit is undervalued? The learned Munsif found issues No. 4, 5 and 6 in affirmative. Other issues were found in negative. The suit of the plaintiff was decreed with costs.
(3.) FEELING aggrieved, the defendant filed the appeal No. 26/78, which was heard and decided by the then IVth Addl. District Judge, Ballia vide his judg ment dated 5-10-78 as aforesaid. The learned 1st appellate court has confirmed the findings of the learned trial court and dismissed the appeal. The defendant has felt aggrieved and has approached this Court by way of this appeal.;