- (1.) THIS second appeal under Section 100 CPC is directed against the judgment and decree dated 21.4.2009 passed by the Additional District Judge, Parbatsar, whereby the appeal filed by the appellant against the judgment and decree dated 20.4.2005 passed by the Civil Judge (Jr.Div.), Kuchaman City has been dismissed.
(2.) THE facts in brief may be noticed thus : Respondent Prathvi Raj Singh filed a suit for possession etc. against the appellant, his step brother on 22.10.1986 with the averments that in Ward No.10 of Kuchaman City a house and two shops of the ownership of the plaintiff's father Manohar Singh are situated, which were constructed by him from his own income; a patta from Municipality, Kuchaman City was issued in his name and the defendant was serving with Air Force and used to live at Jodhpur; in 1982, he came back to Kuchaman City and started residing in a part of the house, which was indicated in the map attached to the plaint; the father sought the defendant to vacate the house and therefore, a suit was filed on 7.8.1984 by the father when the defendant made alterations in the portion of the house in his possession. During the pendency of the suit, the father died on 2.10.1984, who had executed a Will dated 11.4.1980 in favour of the plaintiff bequeathing the entire house in favour of the plaintiff based on which he filed an application under Order XXII CPC before the trial court, however, the said suit was dismissed for non -prosecution as the counsel pleaded no instructions, possession of the suit property was sought.
(3.) A written statement was filed by the appellant -defendant and it was claimed that the defendant has also contributed in acquiring / building the suit property and as the family was joint, the patta was issued in the name of deceased Manohar Singh; his family used to reside at Kuchaman; the suit property was in his possession ever since, the same was constructed. It was claimed that on 8.6.1982, deceased Manohar Singh executed an agreement in favour of the defendant and the suit property was given to him. The Will in favour of the plaintiff was disputed; it was claimed that an affidavit was filed before the Municipality, Kuchaman City by deceased Manohar Singh on 16.6.1983, in which it was admitted that he has partitioned the property among his sons and therefore, the plaintiff does not get a right in the suit property. 4 A replication was filed and the averments contained in the written statement were denied and the averments contained in the plaint were reiterated. The document dated 8.6.1982 was disputed and it was submitted that the same was not admissible for want of registration. The trial court framed 09 issues. On behalf of the plaintiff, 09 witnesses were examined and 03 documents were exhibited and on behalf of the defendant, 05 witnesses were examined and 04 documents were exhibited. During the pendency of the suit, on 21.5.1998, the trial court held that document Ex. -A/1 i.e. the partition deed dated 8.6.1982 was inadmissible.;