VINOD K.SHARMA, J. - (1.) THIS Regular Second Appeal has been filed against the judgment and decree dated 11-03-1981 passed by the learned District Judge, Roop Nagar, vide which suit filed by the plaintiff for separate possession by means of partition of the joint property in question was ordered to be decreed.
(2.) PLAINTIFF -respondent No. 1 herein had brought a suit against Sukhdev Raj and Dev Raj, defendants for separate possession by way of partition of the joint property i.e. two shops, one house and the site thereunder marked as ABCDEF as described in the head-note of the plaint. It was pleaded that Babu Ram and defendant Nos. 1 and 2 along with their brothers, Megh Raj, Madan Gopal and Hem Raj, purchased a plot described in the head-note of the plaint for a consideration of Rs. 7330/- vide sale deed dated 29-01-1969 from one Jamadar Singh son of Hans Raj. The plaintiff had 2/7th share in the plot, whereas defendant Nos. 1 and 2 alongwith their brothers Megh Raj, Madan Gopal and Hem Raj had 5/7 shares therein. The plaintiff, defendant No. 1 and Megh Raj, Madan Gopal and Hem Raj, constructed shops on the vacant site. The plaintiff and defendant No. 1 purchased the share of their brothers in the site along with the shops constructed thereon in equal shares vide sale deed dated 30-9-1974 for a sum of Rs. 8500/-. The plaintiff and defendant No. 1, therefore, became the owners in possession of two shops to the extent of half share each. It was further averred that the plaintiff and defendant No. 1 constructed a house jointly in the rest of the plot marked as CDEF as shown in the site plan. It was also claimed that the plaintiff and defendant No. 1 had half share each in two shops as well as half share each in the house. The plaintiff was said to be having 3-1/2/7 share and defendant No. 1 had 2-1/2/7 share and defendant No. 2 had 1/7 share in the site underneath the building shown as ABCDEF in the site plan. On these pleadings, the possession by way of partition was sought. The suit was contested by defendant No. 1 where he had admitted that he along with the plaintiff had purchased the share of their brothers Megh Raj, Madan Gopal and Hem Raj in the site along with the shops standing thereon through the sale deed dated 29-1-1969. It was denied that the plaintiff and defendant No. 1 were in joint possession of the property mentioned in the plaint. It was claimed that the property was in possession of defendant No. 1 as exclusive owner. It was admitted that the house marked as CDEF was jointly constructed. However, it was claimed that the plaintiff had no share in any part of the suit property. Dev Raj was said to be having 1/7 share in the vacant site, but the plaintiff was said to have no share therein. It was further claimed that there had been a partition between the parties and the share of the plaintiff was adjusted as he had been given whole of the house in the boarding house street near house of Ch. Sarwan Singh son of Rangi Ram as per the agreement dated 3-01-1977. It was also claimed that there was a partition prior to it also which was opposed and subsequent partition was effected. As regards the joint business and immovable property, it was claimed that under the terns of the agreement dated 30-1-1977, the plaintiff was liable to pay to defendant No. 1 an amount of Rs. 12,500/- (Rs. Twelve Thousand Five Hundred) in three instalments. It was further claimed that it was agreed that under the agreement the plaintiff would execute a sale deed in respect of the property which was given up in favour of defendant No. 1 in the suit property and the said sale deed was to be executed on 15-6-1977. The property in suit was known as Main Road Wali shop and house. Defendant No. 1 claimed to have been put in possession of the property by the plaintiff in part performance of the agreement dated 03-01-1977. The agreement was said to have been duly written and signed by the parties in which defendant No. 1 had given up his share in the house situated in Boarding House Wall Gali. It was also agreed that defendant No. 1 would manage the share of Dev Raj himself. It was also the case of defendant No. 1 that plaintiff was not in possession of the suit property. The other objections were also raised.
(3.) ON the pleadings of the parties, following issues were framed : "1. Whether the partition has taken place between the parties and the suit property has fallen to the share of the defendant No. 1 ? 2. Whether the plaintiff has got 1/2 share in the suit property ? 3. Whether the suit is properly valued for the purposes of court fee and jurisdiction and proper court fee has been paid ? 4. Whether the suit is bad for non-joinder of necessary parties ? 5. Relief." The learned trial Court on issue Nos. 1 and 2 came to the conclusion that the partition had already taken place between the parties and defendant No. 1 was in exclusive possession of the property in dispute on the basis of the agreement. On issue No. 3, it was held that the suit was properly valued for the purposes of court fee and jurisdiction. On issue No. 4, it was held that the suit was not bad for non-joinder of necessary parties. In view of the findings recorded on issues No. 1 and 2, the suit was dismissed.;