JAGTA Vs. BHAGTA @ BHAGAT RAM

JUDGEMENT

(1.) PLAINTIFF Bhagta @ Bhagat Ram instituted a suit for separate possession by way of partition by metes and bounds of the property described in the site plan annexed to the plaint which was two houses built in land comprising 12 Marlas and 9 Marlas respectively within the Lal Lakir of Village Jagpalpur, Tehsil Phagwara, District Kapurthala as bounded by properties described. A restraint order was sought against the defendants and their attorney from raising any sort of construction over the disputed properties or to change the nature of the suit corpus. Admittedly, the plaintiff and the defendants are joint owners of the said properties and have an equal share therein. Though defendant No.5 had no concern with the property in dispute but he was named as a co -sharer in the land comprised in Khasra No.16 (1 -0), and as such, was impleaded as party to the suit.

(2.) INDISPUTABLY , no partition has taken place between the parties with respect to the properties in dispute by metes and bounds. Thus, the plaintiff is entitled to separate possession as was asserted in the suit. Therefore, it was pleaded that the defendants have no right to raise construction over properties without partition. Since plaintiffs claimed they were under threat of neighbour to raise construction to injure the plaintiff, the suit was brought for permanent injunction for restraints orders.

(3.) DEFENDANT Nos.1 and 3 contested the claim of the plaintiff while defendant Nos.2 and 4 were proceeded ex parte on August 01, 2005 vide order passed by the Civil Judge (Junior Division), Phagwara. The defendants pleaded that the properties had been mutually partitioned. The suit was bad for partial partition. Since the parties owned two other houses, the total joint land holding comprising four houses and the defendants are in possession of their respective houses. The defendants pleaded that the house mentioned in para.1 of the plaint is exclusively owned and possessed by Jagta, defendant No.1, who constructed his house about 35 years ago, which is a double storied house. The plaintiff has no right in it. The land on which the house is constructed was purchased by the parties to the suit by sale deed dated January 07, 1962 with half share belonging to Jagta and the other half belonging to Bhagta, Lakha and Jagiri in equal shares i.e. Jagta purchased 6 marlas while the other purchased 2 marlas each. A memorandum of partition was written on June 06, 1970. It was pleaded that the property mentioned in Khasra No.16 (1 -0) is a house owned and possessed by Jagiri and Lakha to the extent of 6 marlas and 3 marlas respectively which is constructed over 30 years ago and by private partition on June 06, 1970, this property fell to the share of Bhagta, Lakha and Jagiri in equal shares. There was a second private partition between two of the brothers, that is, Jagiri and Bhagta whereby the plot fell to the share of Jagiri and Bhagta but Bhagta relinquished his share in favour of Jagiri while Jagiri relinquished his share in the house in favour of Bhagta, plaintiff. The parties are in possession of their respective houses and after partition, had no connection with each other whatsoever. The plaintiff has no share in the suit property after partition was effected mutually.