ASHWANI KUMAR MISHRA, J. - (1.) This petition questions the correctness of revisional order dated 3.8.2016, arising out of rejection of application for grant of benefit under section 4 of the Partition Act, 1893, preferred during preparation of final decree, whereby the issue has been remitted to the trial court for passing a fresh order in light of the observations made.
(2.) Facts which are not in issue are that late Khikharam was the owner in possession of the property in question i.e. House No.32/8, Gandhi Colony, Muzaffarnagar, who died on 2.7.1955 leaving behind his two sons, namely Suraj Bhan and Madan Lal. Suraj Bhan instituted original suit no.749 of 1988, claiming exclusive right over House No.32/8 as well as share in another House No.30/4, Gandhi Nagar, purchased in the name of widow of Madan Lal, as well as relief of partition and possession in respect thereof in case he was not found in possession. In para-13 and 14 of the plaint it was alleged that a family settlement took place in July, 1959, between the two brothers, aforesaid, and their mother Smt. Rukmani Bai in following words:- ...[VERNACULAR TEXT OMITTED]... In para 19 of the plaint plea of fresh family settlement made in 1979 was asserted, and it was alleged that as per it the plaintiff became the exclusive owner of House No.32/8 and acquired share in House No.30/4.
(3.) A written statement was filed denying exclusive right of the plaintiff over House No. 32/8, while accepting plaintiff's half share over it and claiming that other property belonged exclusively to Smt. Krishna Kumari widow of Madan Lal. Family settlement of 1959 was admitted, whereas plea of fresh settlement of 1979 was denied. A counter claim was also made vide para 41 to 43 of written statement, which is extracted hereinafter:- ...[VERNACULAR TEXT OMITTED]... ;