CHAILU Vs. KHUSHI RAM

JUDGEMENT

(1.) This is a defendants appeal and has been directed against the judgment and decree dated 22.5.1998 passed by the Court of Additional District Judge Hisar who accepted the appeal of the plaintiff Shri Khushi Ram by setting aside the judgment and decree by the Additional Civil Judge (Sr. Division) Hisar and decreed the suit of the plaintiff-respondent for possession by way of partition and a preliminary decree was passed in favour of the plaintiff against the defendants declaring the plaintiff as co-sharer to the extent of 1/2 share in the suit land described in the Head-Note of the plaint and it was also observed by the first appellate court that the plaintiff could apply for appointment of Local Commissioner and for final decree etc. before the lower Court in due course of time. It was also observed by the first appellate Court that the learned Civil Judge (Sr. Division) may either keep that application with him or he may entrust the same for disposal to some other successor Court of Additional Civil Judge (Sr. Division) Hisar.

(2.) Some facts can be noticed in the following manner. Plaintiff, Shri Khushi Ram filed a suit for possession by way of partition of the suit property by alleging that he is co-sharer to the extent of 1/2 share in the property and defendant Nos. 1 to 7 are the owners and co-sharers to the extent of other 1/2 share. The plaintiff had the share of his sister etc. by virtue of Civil Court decree and had become the owner in possession to the extent of 1/2 share. As the remains a dispute between the parties to the suit, so the plaintiff does not want to get the suit land joint and he wants that the same may be partitioned. The defendants in order to cause harm to the plaintiff have permitted defendant No. 2 to encroach upon some portion of the Plot No. 507. It was also pleaded by the plaintiff that he has constructed five room on Plot No. 508 and is in possession of the same as owner. On the above allegations the plaintiff has sought the partition of the property comprised in different Khasra Numbers ad mentioned in the Head Note of the plaint.

(3.) The suit was contested by the defendants and they filed a joint written statement by the stating that the suit is not maintainable; that the plaintiff has no locus standi to file the suit; that suit is bad for non-joinder of necessary parties and it is bad on the principle of resjudicata. It was also pleaded that plaintiff is not owner in possession of the suit property. The plaintiff has abandoned his right, title or interest in favour of the answering defendants who have become the owners in possession of the entire suit property. As the suit property is not common, the question of any dispute does not arises with regard to separate possession. The plaintiff is not the owner of Plot No. 507 nor he has contracted any room on this plot. It was also disputed that the defendants have encroached any area of the plot No. 507.