SURJEET SINGH Vs. JYOTI PRASAD AND ORS.

JUDGEMENT

(1.) THIS is the Plaintiff's second appeal arising out of Suit No. 10 of 1986, which was dismissed vide order dated 23.09.1993 and the appeal filed by the Plaintiff has also been dismissed by judgment and order dated 07.12.2010.

(2.) THE facts, as stated in the plaint, are that the property in dispute belongs to one Pitamber, who was having six sons. The Plaintiff and Defendant are the co -sharers of the property in dispute. The Plaintiff come with a case that partition has already taken place about 35 years back. According to the map, the Defendant is the owner of house shown as J, K, L and Bhagwan Singh son of Geetam Singh is the owner of E, L, M, N shown in the map. As Lala Ram and Roshan Lal have died issueless and Ghanshyam has sold his share to Geetam Singh and Bhagwan Singh, after partition every party is in possession of his own share. The Plaintiff is the owner of house shown in the map as A, B, C, D, E, F, G, H alone and Defendant has no concern with the said house, but the Defendant deliberately and forcibly wanted to interfere and take possession of the said property. A suit has also been filed for partition by the Defendant, which is still pending.

(3.) THE trial court framed various issues and one of the main issue was whether the Plaintiff is the owner of the property, on which he is in possession and whether any partition has taken place or not? After considering the issues, the trial court has recorded a finding that burden to prove the partition was upon the Plaintiff because he claimed that the partition has already taken place about 35 years back and unless and until Plaintiff proved regarding the partition, no injunction can be granted. A further finding has been recorded that the total case of the Plaintiff is based on partition, though the Defendant has stated and proved that Arazi Nos. 100, 99, 89 and 107 are the joint property and no partition has taken place. Even, PW -2 Geetam Singh in his examination -in -chief has stated that it is a joint property and disputed property is also included in that. A finding has been recorded that if the partition has taken place, the partition of abadi, as mentioned, should have been there, but from the record and statement it appears that the abadi is being used jointly by the parties, therefore, the Plaintiff has failed to prove that any partition has taken place, as such, in case of joint property no injunction can be granted. After recording such finding, the trial court dismissed the suit vide judgment and order dated 23.09.1993.