PAHARU Vs. ITWARU RAM

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered by this Court in this defendants' second appeal is as under:-

(2.) The plaintiff filed a suit for declaration of title, partition and separate possession stating inter-alia that his father Sukalu and father of the defendant namely Sukul both were brothers and their father's name was Jhuru. Jhuru had two sons namely Sukalu, the plaintiff's father and Sukul, the defendant's father and the suit property belonged to them and no partition was taken place between them during their life-time. On behalf of the plaintiff, defendant No.1 was managing the suit land by giving share of crop after harvesting to the plaintiff, which he did not give to the plaintiff on 4.12.2001 i.e. for the year 2001 and the plaintiff came to know that the suit property was recorded in the defendant's name on 24.3.1972, against which, the plaintiff preferred appeal before the Sub-Divisional Officer, in which he remained unsuccessful leading to filing of the suit for declaring the mutation entry to be void and for declaration of title, partition and separate possession.

(3.) Defendant No.1 took a plea by filing written statement that the suit property has already been partitioned long back and his name has been recorded in revenue records, as such, the plaintiff's suit is liable to be dismissed. The trial Court accepted the plea of the plaintiff holding that the suit property belonged to the plaintiff's father and the defendant's father and it was never partitioned and for the sake of convenience, it was being managed by defendant No.1 and mutation entry dated 14.5.1972 is void and the plaintiff and defendant No.1 each of them have 1/2th share in the suit property negativing the plea of limitation projected by the defendant. In appeal taken by the defendant, the first appellate Court principally agreed with the finding recorded by the trial Court on the question of partition that no partition has taken place between the plaintiffs and the defendant's father and dismissed the appeal affirming the judgment and decree of the trial Court, against which, this second appeal under Section 100 of the CPC has been preferred by the appellant/defendant, in which substantial question of law has been framed by this Court, which has been set-out in the opening paragraph of this judgment.