RADHA KRISHNA AGRAWALLA Vs. BRAJA MOHAN LAL AGRAWALLA

JUDGEMENT

(1.) IN this writ application the challenge is made to the order dated 6.2.2007 passed by the learned Civil Judge (Senior Division) Kuchinda in Civil Suit No.45 of 2006 wherein he rejected the counter - claim of the petitioner.

(2.) THE facts of the case are as follows : Opposite party No.1 as the plaintiff filed Civil Suit No.45 of 2006 for partition by metes and bounds amongst the plaintiff, the present petitioner - defendant No.1 and opposite party Nos.2 to 5 the other defendants. The petitioner after receiving the notice of the suit, filed his written statement on 30.10.2006 along with a counter -claim as provided under Order 8, Rule 6 -A of the Civil Procedure Code. He claimed that (a) Schedule 'E land of the counter -claim be divided among defendant Nos.1, 2 and the plaintiff and in the partition, Schedule 'F land be allotted to the plaintiff, Schedule 'G land to defendant No.2, Schedule 'H land to defendant No.1, and (b) any other relief which may be deemed proper shall be granted.

(3.) THE Court below on the rival claims of the parties and after verifying the record held that in different Major Settlement Plots under different Khatas as mentioned in the Schedule 'E of the counter -claim yet stood recorded in the names of different persons other than the plaintiff and defendant Nos.1 and 2 and most of those lands are to be declared as acquired land of the three contesting parties, i.e., plaintiff and defendants. It further held that those lands are not readily available for partition and without hearing recorded tenants in respect of those lands. The present suit relates to a portion of joint family property. It appears that prior to the suit the plaintiff and defendant Nos.1 and 2 have amicably divide the subject matter of the suit property outside the Court as evidence by some registered and unregistered documents. In the suit partial partition can be made leaving rest of property as joint. The counter claim preferred by defendant No.1 cannot be adjudicated so easily unless a fresh and separate suit is filed. On the above grounds the Court below rejected the counter claim.