AJIT SINGH Vs. UJJAGAR SINGH

JUDGEMENT

(1.) This second appeal has been preferred by the unsuccessful plaintiff/appellant, Ajit Singh, against the judgment and decree dated 13.9.1986 passed by the Additional District Judge, Jalandhar, vide which he dismissed the first appeal preferred by the plaintiff against the judgment and decree dated 16.11.1985 passed by the Sub Judge Ist Class, Jalandhar, dismissing his suit for possession by way of partition by metes and bounds of the four properties situated in village Atti, Tehsil Phillaur,, fully detailed in the heading of the plaint and described in the maps Annexures A, B, C and D, annexed with the plaint.

(2.) The case of the plaintiff, as narrated in the plaint, is that the suit properties are jointly owned and possessed by him and the defendant in equal share. Jointness of these properties has become a source of quarrel between them and it has become difficult for him to derive full advantage of his share. Previously also, he filed Civil Suit No. 313 of 1983 in which the plaint was rejected, vide order dated 21.11.1983, on account of nonfulfilment of the conditions mentioned in under Order 23 Rule 1 of C.P.C. He asked the defendant to admit his claim for partitioning these properties, but he refused. Therefore, he filed suit for possession by way of partition by metes and bounds.

(3.) The suit was contested by the defendant. In his written statement, he admitted that the properties in dispute were joint properties. However, he denied the other contentions of the plaintiff and, inter-alia, pleaded that all these properties stood partitioned amongst the co-sharers, regarding which memorandum of partition was executed on 3.7.1956. In that partition, the property described as 'A' fell to his exclusive ownership, whereas the properties described as 'B & C' fell to the exclusive share of the plaintiff and the property described as 'D' fell to the share of their third brother Bachint Singh and after his death, their real sister Chinti came in possession thereof. After partition, he is exclusive owner in possession of the property 'A', wherein he has constructed a residential house, consisting of a room, kitchen, bathroom and courtyard, by spending huge amount of Rs. 1 lakh. At the time of the said partition, the plaintiff was minor and the same was effected on his behalf by his mother, Kartari, who had thumb marked the memorandum of partition on his behalf. Since the date of partition, the plaintiff is seeing him to be in exclusive possession of the property 'A' and, as such, is barred by his own act and conduct from filing the present suit. The same is bad for mis-joinder and non-joinder of necessary parties and for partial partition. He prayed for dismissal of the suit.