PARAMJEET SINGH, J. - (1.) THIS regular second appeal by defendant is directed against the judgment and decree dated 10.03.2010 passed by learned Additional Civil Judge (Sr. Divn.), Dasuya whereby suit for partition filed by respondent -plaintiff has been decreed and against the judgment and decree dated 01.07.2013 passed by learned Additional District Judge, Hoshiarpur whereby appeal preferred by appellant -defendant has been dismissed. For convenience sake, hereinafter, reference to parties is being made as per their status in the suit.
(2.) THE detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that the property, fully described in the head -note of plaint and shown in site plan attached with plaint, are joint ownership of the parties and they have raised construction tentatively just to fulfill the routine necessity and they are in possession of the same as per the site plan. Some of the properties shown in the site plan were situated within the red line area of the village and some other property bears khasra numbers as per the revenue record. No legal partition has yet taken place in respect of the suit property till date. The plaintiff was in possession of the lesser area than his due share and so he was not able to enjoy the full benefits of the joint property. The plaintiff had requested the defendant to partition the suit property but to no avail. It was further pleaded that the defendant had constructed house in the part of the land comprised in khasra no.137//1, 60// and 137//3, whereas, the plaintiff had started raising construction in the land comprised in khasra no.340. The defendant had unnecessarily filed a civil suit seeking a decree for permanent injunction against the plaintiff. It was further pleaded that southern side of the property shown with letters EIDI, AI, BI, CI, FI abuts the metalled road leading towards village Mehtabpur and portion of this property abutting the metalled road had also commercial value for construction of shop. The owners of adjoining places of land had already constructed shops and were running their business in the said shops, therefore, that portion of the property was more valuable than the remaining portion. 3. Upon notice, the defendant resisted the suit and filed written statement taking various preliminary objections. On merits, it was pleaded that one plot of land had not been included in the suit property which was transferred by the plaintiff. The property which bears the khasra numbers is lying almost vacant and in joint possession of the parties except khasra no.340, which has been occupied by the plaintiff. The defendant had filed injunction suit in respect of this khasra number. The defendant was already ready for the partition but the defendant should be given his share, equal in value and quality, which the plaintiff was not ready to give. The defendant had raised the construction in khasra no.137//1, 60// and 137//3 whereas equal area of these khasra numbers was in possession of plaintiff as shown by him in the site plan. The dispute was only regarding khasra no.340 which was the most valuable area. The portion in possession of plaintiff was almost equal. Other averments in plaint were denied and dismissal of suit was prayed for.
(3.) ON the basis of pleadings of the parties, the Court of first instance framed following issues: "1. Whether the plaintiff is entitled for partition of the suit property by metes and bounds as within red line area of village Manjpur, Tehsil Mukerian, District Hoshiarpur and as fully detailed and described in the head note of the plaint?OPP 2. Whether the plaintiff has not given the true facts regarding suit property and whole of the property is not mentioned which is to be partitioned?OPD 3. Relief." After appreciating the evidence, the Court of first instance decreed the suit and a preliminary decree was passed. Feeling aggrieved, the defendant preferred an appeal which has been dismissed by the lower Appellate Court. Hence, this second appeal.;