KARAM SINGH Vs. INDER SINGH

JUDGEMENT

(1.) This is plaintiffs' second appeal whose suit for possession by partition was decreed by the trial Court but was dismissed in appeal.

(2.) Amongst some other properties, the plaintiffs and the defendants were allotted two houses bearing No. 120 and 121 situated in village Nagla, Tehsil Thanesar. All three of them are the real brothers being the sons of Radha Singh. Defendant No. 1 was in possession of property No. 120 which he has now sold to defendants 2, 3 and 4 by means of a registered sale-deed dated 25.5.1971 for a sum of Rs. 7,000/-. According to the plaintiffs, defendant No. 1 had only 1/3rd share in that property so he could not sell it without getting it partitioned. The plaintiffs filed a suit for possession of their 2/3rd share by partition of the property in dispute. The suit was contested inter alia on the ground that besides the house in question i.e. house Nos. 120 and 121, the plaintiffs, defendant No. 1 Makhan Singh and his three sons were jointly allotted other plots also bearing Nos. 95, 116, 118, 119, 124, 125 and 126. They pleaded that after this joint allotment, a family partition took place whereby plot No. 121 came to the exclusive share of Inder Singh defendant No. 1. Another plea was also raised that the suit was liable to be dismissed as the plaintiffs had failed to include all the joint co-sharers of the joint property belonging to the parties.

(3.) The trial Court found that the plea of family partition taken by the defendants could not be upheld. The plaintiffs were held to be the owners of 2/3rd share in the house in dispute and entitled to get their share by partition. Consequently, a preliminary decree was passed accordingly. In appeal, the learned Additional District Judge found that since the joint property including the property in suit, owned by the plaintiffs and defendant No. 1 etc. had already been partitioned in a family settlement, the suit for possession by partition was not maintainable. It was also found that the plaintiffs did not have any share in the property in dispute as the said plot fell to the share of Inder Singh defendant No. 1 in the family partition. The first appellate Court also found that the suit was bad for non-joinder of necessary parties and was not maintainable in the present form. As a result of these findings, the plaintiff's suit was dismissed.