- (1.) This is defendant's appeal against whom preliminary decree for partition has been passed by the trial Court.
(2.) The plaintiff- respondent Som Nath filed the suit for possession by partition of properties Nos. 1 to 7 as detailed in the heading of the plaint, It was alleged that the aforesaid properties are jointly held by him and the defendants, the plaintiffs being owners of 1/2 share and defendant Nos. 1 to 6and the plaintiff being owner in 1/4th share and defendants Nos. 1 to 6 in 1/4th share defendants Nos. 7 to 9 in the remaining 1/2 share in property No. 7. In the written statement filed on behalf of the defendants, it was pleaded that the suit was bad for partial partition; for want of necessary parties. It was further pleaded that the plaintiff had sold out the property No. 7 during the pendency of the suit, and hence the defendants are prejudiced, and the purchasers of properties have not been brought on record. It was also pleaded that the shares of the parties have been wrongly stated in the plaint. On the pleadings of the parties, the trial Court framed the following issues:- (1) Whether the entire joint property has not been included in this suit, if so its effect ? (2) What are the respective shares of the parties ? (3) Whether the property mentioned at serial No. 6 of the plaint can not be made subject-matter of the suit ? (4) Whether the defendant has spent any amount from his own pocket to raise construction, if so, how much and its effect ? (5) Whether Shakuntla Devi is a necessary party ? (6) Whether Daya Shankar has executed a valid Will in favour of Som Nath plaintiff and Ram Nath ? OPP. (7) Whether the suit is properly valued for the purpose of court-fee and jurisdiction ? OPP (8) Whether the suit is bad for non-joinder of necessary parties ? OPD. (9) What is the effect of the plaintiff having sold a part of property during the pendency of the suit ? OPP. (10) Relief.
(3.) Under issue No. 1, the trial Court found that there is no other joint property of the parties except the suit property. Under issue No. 2 the trial Court found the respective shares of the parties. Finding under issue No. 3 was that only Khasra No. 2256 of property No. 6 is subject to partition by this Court. The other two Khasra Nos. i.e. No 2258 and 2259 where left out being agricultural land. Under issue No. 4 the trial Court found that this will be decided at the time of the passing of the final decree. In view of these findings on the substantial issues, the trial Court decreed the plaintiff's suit vide its judgment dated 13.12. 1976.;