- (1.) THIS is plaintiff's second appeal challenging the judgment and decree of the first appellate Court dated 04.12.2012 whereby appeal filed on behalf of the defendant -respondent, against the judgment and decree dated 19.05.2011 of the trial Court decreeing the suit of the appellant, was accepted and his suit was ordered to be dismissed.
(2.) PARTIES to the suit are real brothers. It is the case of the plaintiff -appellant that they have joint land, comprising a Kotha and Tubewell, measuring 10 Marlas comprised in Khewat No.110, Khatauni No.185 bearing Khasra No.36/11/1 situated within the revenue estate of village Manghera, Tehsil Tohana, District Fatehabad and no partition of the same ever took place. There remains a dispute about the suit land with regard to its use and occupation thus, the appellant wants to partition the joint land. Hence necessity arose to file the instant suit seeking a decree for possession of the suit property by way of partition, as prayed.
(3.) THE case set out by the defendant -respondent in the written statement is that though the land in dispute was joint of the parties to the dispute but the same was partitioned in a family settlement and after that the parties are in possession of their respective portions as owners. Even after the partition, the defendant constructed a Kotha and installed a Tubewell at his own expenses. It was denied that the plaintiff was entitled to seek partition of the property in dispute. All other averments were denied and dismissal of the suit was prayed for. No rejoinder was filed on behalf of the plaintiff -appellant. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiff is owner of disputed land to the extent of half share? OPP 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled to the relief as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has got no locus standi to file the present suit? OPD 5. Whether the plaintiff has suppressed the true and material facts from the Court? OPD 6. Whether the Civil Court has got no jurisdiction to try the present suit? OPD 7. Relief. After hearing both the parties and perusing the case file, the trial Court under issues No.1 and 2 held that the land in dispute was joint of the parties and as such the Court directed its partition by passing a preliminary decree.;