ATAM PRAKASH Vs. OM PRAKASH

JUDGEMENT

(1.) The present appeal has been preferred by the defendant No.1- appellant against the judgment and decree dtd. 24/2/2016 passed by the Trial Court and the judgment and decree dtd. 2/12/2022 passed by the First Appellate Court decreeing the suit for partition filed by the plaintiffrespondent Nos.1 to 3.

(2.) The brief facts relevant to the present lis are that the parties trace their lineage to Ramsaranchand who had five sons and two daughters. Ramsaranchand died in 1994 and the parties are his legal heirs. According to the plaintiff-respondent Nos.1 to 3, the plaintiff-respondent No.1 is co-owner to the extent of 1/7 share while plaintiff-respondent Nos.2 and 3 are together co-owners to the extent of 1/7 share. The original five defendants are coowners to the extent of 1/7 share each. It was pleaded that the co-sharers were unable to develop their respective shares without getting the suit properties partitioned and that the plaintiff-respondent Nos.1 to 3 wanted to develop their shares by getting their separate possession by way of partition of the suit properties. It was alleged that despite repeated requests the defendants had not agreed to settle the matter, hence the suit for partition. The suit was contested by the defendants by filing separate sets of written statements. In his written statement and counter-claim the defendant No.1-appellant raised preliminary objections and took the plea that the suit properties did not match the site plan and the documents of ownership. Regarding one set of the suit properties it was alleged that the defendant No.1-appellant had spent a huge amount of money in raising construction thereon and hence the plaintiff-respondent Nos.1 to 3 could not seek its partition. It was further averred that Ramsaranchand had given a writing to the municipal authorities in 1985 that the defendant No.1-appellant would be owner of 1064 sq. yards and on the basis of that writing the defendant No.1-appellant was recorded as owner and was paying the house tax. It was also alleged that the suit was bad for partial partition as certain properties had not been included and also that the defendant No.1-appellant was owner of some suit properties. The other defendants also contested the suit. In the replication the contents of the plaint were reiterated and those of the written statements were denied.

(3.) On the basis of the pleadings of the parties the following issues were framed :