V.K.BALI,J - (1.) THIS Regular Second Appeal has been directed against judgment and decree rendered by learned Additional District Judge, dated 2.8.1980 vide which, while accepting the appeal preferred by respondent herein, judgment and decree of the trial Court was set aside.
(2.) BRIEF facts of the case reveal that the appellant (hereinafter referred to as 'plaintiff') staked his claim to the property in dispute on the basis that he was real brother of Kundan who, it appears, died during the pendency of first appeal. Kundan is stated to have executed a gift deed with regard to suit land measuring 24 kanals 4 marlas in favour of the respondent (hereinafter referred to a 'defendant'). This gift was alleged to be without consideration and legal necessity. Kundan constituted a Joint Hindu Family with the plaintiff and property was a joint Hindu Property. Kundan could not have made a gift of the same and, therefore, plaintiff was entitled to recover possession of the property in dispute. The matter was contested by the defendant, now survived by his legal representatives. It was, inter-alia, pleaded in the written statement that there had been partition between two brothers and they had been living separately in different villages and if at all, there was, at one time Joint Hindu Family property, it could not be held to be so when Kundan gifted this land to him. On the pleadings of the parties, the trial Court framed the issues that have been mentioned in judgments rendered by the courts below. The trial on the issues framed by the trial court resulted in decreeing the suit of plaintiff. Aggrieved, defendant preferred an appeal, which, as mentioned above, was allowed, thus, setting aside the judgment and decree passed by the trial Court.
(3.) MR . Ajay Mittal, Advocate assisted by Mr. Akshay Bhan, Advocate erred in holding, under Issue No. 1, that the status of property as Joint Hindu Family property, disrupted on partition of same by the brothers inasmuch as there was no proof of partition of the property between the brothers and in absence of the same, presumption of jointness of property had to be drawn. It is further contended that no mutation of partition had been produced on record and that a co-sharer in possession of exclusive share could alienate that part of property and that would not indicate breaking of the status of Joint Hindu Family property.;