MAGNU AHIR AND OTHERS Vs. MAHABIR

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit for partition of two sets of property situate adjacent to each other and for demolition of a certain construction, which was in the course of being made,, on the north-western side of the northern set of the property.

(2.) THE following are the allegations in the plaint, The parties belonged to the same family, the plaintiff being the son of Salik and the defendants being the sons of Salik's brother Harhangi. The entire property was joint in which the plaintiff on the one hand and the defendants on the other had a 1/2 share each. For some years past they were separate in mess and residence and were living in separate portions of the houses according to their con­venience, but there was no regular partition between them and the entire property was the joint property of the parties. A rough site plan was drawn, up at the foot of the plaint with allegation that, if necessary, a plan made on scale, will be produced later on. This is followed by the allegation that at the place ka, which is on the north-western corner of the northern one of the two sets of property, there was originally marhai belonging to the plaintiff, which fell down a few months ago, but he could not construct it so far. A few days ago, the plaintiff wanted to place another marhai at that place, but the defendants stopped him from doing so, and that was not all. On 26-1-1967 they started a fresh construction at that place and want to speedily build it. The plaintiff requested them to separate his share by partition before raising any constructions, but they paid no heed, hence the suit. The cause of action was said to have arisen on 26-1-1967.

(3.) THE plaintiff filed a replication. He denied the allegation that there was any partition 25 years ago, or at any time, between the parties. He also denied the family settlement of 1954 and the agreement said to have been executed between them it was in that context further alleged that the parties were litigating in Suit No 444 of 1953 in which a compromise was arrived at on 21-11-1954, and the alleged agreement of 1954 was fabricated with the help of thumb impressions of the plaintiff taken on a number of papers in that context. The agreement was also said to be inadmissible for want of registra­tion on the allegation that the value of the property, said to have been partitioned was not less than Rs. 1000/-. It was further alleged that no effect was given to the agreement and the parties continued to be in joint possession of the property. The allegation of raising fresh constructions by the defendants was denied and it was further alleged that the parties had jointly raised abadi on garha of plot No. 292/2, of which they were joint Sirdar and which was held to be joint in the said Suit No. 444 of 1953 and in which the parties were given 1/2 share each. About the parti land in the -abadi to the south of plot No. 292/2 also it was said that it was jointly acquired by the parties and was in their joint possession. The marhai in suit was claimed to be that of the plaintiff and it was re-asserted that the plaintiff wanted to re-construct it and the allegations to the contrary were wrong. The entire property in suit was said to be joint and in joint possession of the parties. The allegations about the plaintiff having encroached upon the land in possession of the defendants or there being any dispute about it, was •denied.