SHAILENDRA SINGH Vs. SUBHEG SINGH

JUDGEMENT

(1.) Present petition is filed assailing the judgment and preliminary decree dated 19.12.1998 passed by Assistant Collector, First Class, Rudrapur decreeing the suit for partition declaring the share of petitioner, respondent nos. 1 and 2, as one-third each; judgment and final decree dated 31.05.2000 passed by Assistant Collector, First Class, Rurdrapur whereby lots prepared by the Lekhpal for 1/3rd share of each was accepted; judgment and decree dated 09.05.2002 passed by Commissioner, Kumaon Division, whereby first appeal filed by the defendant - petitioner, herein, came to be dismissed; judgment dated 09.04.2003 passed by Chief Revenue Commissioner whereby second appeal filed by defendant petitioner, herein, also came to be dismissed.

(2.) Brief facts of the present case, inter alia, are that plaintiff respondent no. 1, herein, has filed suit no. 22/07 1996-97 (Subheg Singh Vs. Santok Singh and others) in the court of Assistant Collector, First Class, Rudrapur under Section 176 of the U.P. Z.A. & L.R. Act seeking partition of the property saying that plaintiff and defendant nos. 1 and 2 are cosharers of the property having 1/3rd share each. In a suit so filed, a plea was taken to the effect that property was mutually partitioned between the parties before filing of the suit and parties are in possession of their respective different lots. However, learned trial court had not accepted the plea of mutual partition and was pleased to pass preliminary decree vide judgment and decree dated 19.12.1998 declaring the share of petitioner and respondents no. 1 and 2, 1/3rd each.

(3.) It is important to mention here that judgment and preliminary decree dated 19.12.2008 declaring 1/3rd share each was never challenged by any of the parties and allowed to attain finality. Thereafter, on the application, learned trial court was pleased to direct the Lekhpal to prepare lots. Pursuant to the trial court's order, Lekhpal was pleased to prepare three lots to be allotted to plaintiff and defendants no. 1 and 2 respectively. Defendant no. 2 petitioner, herein, challenged the proposed lots saying property had already been partitioned, prior to filing of suit for partition and lots / share should be given to the parties, as per mutual settlement entered into between the parties. Learned trial court did not agree with the plea of defendant petitioner, herein, and was pleased to confirm the lots, as prepared by Lekhpal. Thereafter, first appeal and second appeal filed by defendant petitioner, herein, also came to be dismissed.