- (1.) This appeal has been filed against the order of the learned District Judge, Balotra dated July 29, 1988 by which he has allowed the application of the plaintiff-respondents and has restrained the defendant appellants from transferring the suit plot and raising construction thereon. The facts of the case giving rise to this appeal may be summarized thus:
(2.) The plaintiff-respondents have filed a suit for partition in the court of District Judge, Balotra with the allegations, in short, that a plot, shown by red colour in plain, paper No. A2/6 and described in para 4 of the plaint, is situated in Pinjaron-ka-bas, Jasol (Balotra), it is jointly owned and possessed by the parties, the defendants have refused to partition it and they are intending to sell it. The defendants have filed their reply simply admitting that the suit plot is situated in Pinjaron-ka-bas, Jasol. The remaining allegations of the plaint have been denied. They have averred that in the site plan, paper No. A2/6, also in Para No. 4 of the plaint only half portion of the plot (which came in the share of the defendants) has only been shown, its western portion which came in the plaintiffs' share on partition and given to Prithvi Raj by the plaintiffs, has not been shown and in fact joint plot had been divided, the eastern portion which is in dispute came in the share of the defendants and the western portion came in the share of the plaintiffs which have been given to Prithvi Raj by the plaintiffs. Along with the plaint, an application under Order 39 Rules 1 and 2 CPC was moved. The defendants filed their reply, seriously opposing it. After bearing the parties, the learned District Judge allowed the application as said above.
(3.) It has been contended by the learned counsel for the defendant-appellants that it is the admitted case of the parties that Kishore Singh (father of plaintiff No. 1 and husband of plaintiff No. 2) and Ganpat Singh (husband of the defendant No. 3 and father of the defendants Nos. 1,2 4 and 7) were real brothers and Ex-Jagirdars. He further contended that they owned two plots jointly one situated in Baoriwala and the other in Pinjaron-ka-bas, both the plots were divided, the eastern portion of the plot situated in Pinjaron-ka-bas came in the share of defendants and the western portion came in the share of the plaintiffs which was subsequently given to Prithvi Raj Barber of Jasol, there had been litigation in respect of portion of the plot given to Prithvi Raj before the Gram Panchavat and in respect of the portion of the plot given to the defendants with Gafoor Khan before the S.D.M., Balotra. He also contended that Prithvi Raj admitted in his reply dated April 10, 1977 Paper No. C14/3, that he is in occupation and possession of the land with the permission of the Ex-Jagirdar Kishore Singh and he also contended that Prithvi Raj filed his affidavit, paper No. C14/8, Criminal Procedure Code initiated by Gafoor Khan in respect of the disputed plot and he has disclosed in it that it is owned and possessed by plaintiff Karan Singh and his plot is just annexed to it towards the west. He further contended that the plaintiff tiled a suit in the year 1984 for injunction and declaration against one Bhanwarlal in respect of a portion of the said plot situated in Baoriwala locality of Jasol and in his statement the plaintiff Narain Singh has admitted in his statement, paper No. C30/ 12/-18, recorded in the said suit that the plot situated in Baoriwala was partitioned in between the plaintiffs and defendants' father Ganpat Singh. It was also contended by the learned counsel for the defendant-appellants that the learned trial court has seriously erred to hold that the said statement, paper No. C30/12-18, of the plaintiff Narain Singh cannot be looked into as he has not been confronted with it as required under Section 145, Evidence Act and the reply, paper No. C14/3, and affidavit, paper No. C14/8, statement, paper No. C.7/2 of Prithvi Raj are no help to the defendants. He contended that there is a presumption that partition has been effected in respect of all joint properties. He relied upon Article 328(2) of Mulla's Hindu Law, para 489 of Mayne's Hindu Law, page 219 of Gour's Hindu Law (1980 Edition), page 397 of Gupta's Hindu Law (1981 Edition) para 362 of Raghavachariar's Hindu Law and page 412 of H.L. Sarkar s Hindu Law and Tejraj v. Mohanlal,1955 AIR(Raj) 157Kanshi Ram v. Duni Chand, 1934 AIR(Lah) 707 Narmadu Bai Tulsiram Shet Agrawala v. Rupsingh Bhila, 1938 AIR(Bom) 69, Dattatraya Sitararn Kulkarni v Shanker Mahadji Kulkarni, 1938 AIR(Bom) 250, Rudragouda Venkangouda Patil v. Basangouda Danappagoucla Patil,1938 AIR(Bom) 257, Ram Laxmi Ranchodial v. The Bank of Baroda, 1953 AIR(Bom) 50, Kumarappa Chetti v. Muthuvijaya Raghunatha Muthukumara vanagarnudi Paluvatti Thevar, 1932 AIR(Mad) 207, Nadiammai Aehi v. Mariappa Thevar, 1951 AIR(Mad) 625, and Rannagina Sah and others v. Harihar Sah and others, 1966 AIR(Pat) 179. He also contended that it is not necessary to contradict a party under Section 145. Evidence Act with his formal statement and he relied upon Bishivanath Prasad v. Dwarka Prasad, 1974 AIR(SC) 117. He lastly contended that admission is the best evidence. He relied upon Narain Bhagtirantrao Gosavi Ralojiwala v. Gopal Vinayak Gosavi, 1960 AIR(SC) 100.;