G.S. SANDHAWALIA, J. - (1.) THE present appeal has been filed by the unsuccessful plaintiff wherein the suit for possession of land measuring 0.5 marla by way of partition has been dismissed and the Trial Court has held that the defendant has a preferential right to purchase the share of the plaintiff of the disputed house as per Section 4 of the Partition Act, 1893 (for short THE Partition Act).
(2.) THE suit for possession was preferred by the plaintiff-appellant on the ground that he was owner of 0.5 marla in the house shown in red colour marked as ABCD in the site plan attached bounded on East: House No. 31-L; West Road; South: Kothi No. 37-R; North: Municipal Park, situated in Model Town, Hoshiarpur. It is alleged that Sarla Devi widow of Des Raj was the owner of House No. 37-L, Model Town, Hoshiarpur and the plaintiff had purchased 0.5 marlas out of the said property from Sarla Devi through Sale Deed dated 05.06.1998 for a consideration of ` 1,20,000 and, therefore, he had become owner to that extent out of the suit property. It was pleaded that there was some litigation between one Gurmeet Kaur and others, on one hand and Sarla Devi and others, on the other hand regarding the suit property. Eventually, a compromise was effected between the two and the claim of Gurmeet Kaur was admitted in the suit land except 0.5 marlas sold by Sarla Devi in favour of the plaintiff. In the said litigation, the plaintiff had also filed an application for being impleaded which had been dismissed on 13.03.2004 with the direction that he can file a suit for partition in respect of his share. Accordingly, it was alleged that the present suit has been filed. The defendant appeared and contested the suit by filing written statement wherein various objections were taken and it is alleged that Sale Deed dated 05.06.1998 had no effect on the rights of the defendant since this house was inherited by the defendant. It is Des Raj Gandhi who was the owner of the house and the answering defendant alongwith her children had filed a civil suit for declaration which was decreed on 13.03.2004. The ownership of Sarla Devi was also denied. It is further alleged that the plaintiff was a stranger to the family and could not claim partition and the answering defendant was willing to purchase the alleged share from the plaintiff as provided under the law and the plaintiff was only owner of half marla and the defendant had a preferential right to purchase the same as per Section 22 of the Hindu Succession Act, 1956 (for short The Succession Act). In the earlier suit, the defendant had been granted injunction as she was in possession and the plaintiff had tried to take forcible possession of the suit property and demolished the front wall of the house and the matter was reported to the police authorities and a criminal case was lodged against the plaintiff-Pawan Kumar, which was pending before that very Court. The partition suit filed by Sarla Devi and the present plaintiff-Pawan Kumar was earlier dismissed and these facts have not been disclosed.
(3.) ON the basis of the said pleadings, the following issues were framed by the Trial Court:- 1. Whether the plaintiff is entitled for possession of land by way of partition by metes and bound as prayed for? OPP. 2. Whether the suit is barred under order 23 Rule 1(4) of Civil Procedure Code? OPD. 3. Whether the plaint is liable to be rejected in view of the factum of filing of earlier suit titled as Sarla Devi and Pawan Kumar Versus Gurmeet Kaur and others? OPD. 4. Whether the site plan is not correct as per the spot? OPD. 5.Whether the suit has not been properly valued for the purpose of Court-fee and jurisdiction? OPD. 6. Relief.;