PRATAP Vs. SHIV SHANKER

JUDGEMENT

(1.) THIS appeal arises from the judgment dated 31. 07. 1998 passed by the trial court, dismissing a suit for partition instituted by the appellant, Shri pratap against his father, Shri Shiv Shanker (defendant in the court below ). In the plaint, the appellant sought a decree against the respondent in respect of his one half share in a residential premises bearing No. 486, Bhola Nath nagar, Shahdara, Delhi, constructed on a plot of land measuring 125 square yards. The case of the appellant, as set out in the plaint was that the aforesaid property was an ancestral property, which the respondent had got in partition amongst his other brothers and that the appellant, being the son of the respondent, was a coparcener in the suit property and thus, entitled to a decree of partition to the extent of the half share therein. It was also averred that the respondent had deserted his wife, Smt. Sukh Devi, who is the mother of the appellant and the appellant and that he was threatening to sell the suit property, thus compelling the appellant to institute the aforesaid suit for partition.

(2.) AFTER entering appearance, the respondent controverted the stand of the appellant and contested the suit. Apart from raising preliminary objections with regard to maintainability of the suit on account of improper valuation, non-payment of proper court fee and want of pecuniary jurisdiction, the respondent denied that the suit property was ancestral in nature or was obtained by him by partition with his other brothers. He submitted that the suit property measured 80 square yards and was got constructed by him from his own funds. He disputed the fact that the appellant was his son, or a co-parcener with him in the suit property. After the pleadings were completed, the trial court framed the following five issues:

(3.) WHILE issues No. 1 to 3 were answered in favour of the appellant, issue No. 4 in respect of which, burden of proof was placed on the appellant, was decided against him by holding that there existed no coparcenery and no H. U. F. and hence, the suit property was held to be a self-acquired property of the respondent. Consequently, the suit of the appellant was dismissed. Aggrieved by the said dismissal order, the appellant has preferred the present appeal.