TEJA SINGH Vs. MELA SINGH

JUDGEMENT

(1.) This is defendants' regular second appeal against the judgment and decree of the Additional District Judge, decreeing the suit of the plaintiffs as prayed for.

(2.) Plaintiffs filed suit for separate possession by partition of 1/3rd share of land as per detail given in the plaint. According to the plaintiffs, the plaintiffs and defendants are owners of the land fully described in the head note of the plaint and are in joint possession. Khasra No. 2157 is owned by the plaintiff as well as defendants 1 and 3 and khasra No. 2156 is owned by Guru Granth Sahib and the plaintiff. It has been further alleged that plaintiffs had raised construction over some portion of land in dispute and are residing thereon. Since they are unable to enjoy full benefits of property in dispute so they prayed for partition as well as for separate possession.

(3.) Defendants 1 and 2 in their written statement have taken up few preliminary objections, namely, that the previous suit was for khasra No. 2157 only whereas the present suit relates to khasra Nos. 2156 and 2157 and so the present suit is not in accordance with the permission granted by the Court to file a fresh suit; that the present suit is barred by Order 2 Rule 2 CPC as khasra No. 2156 had not been included in the ealier suit. It has further been stated that khasra No. 2156 measures 3 Kanals 6 marlas and exchange was only for 8 marlas. Thus, khasra No. 2156 is not the joint property of the parties. Plea with regard to the non-joinder of necessary parties and that the suit has not been properly valued for the purposes of Court fee and jurisdiction were also taken. On merits, it was stated that there was an exchange of 8 marlas of land alone. There was partition of joint land between Teja Singh on the one hand and Rattan Singh on the other and khasra numbers included in the partition were 2155 and 2158. Teja Singh-defendant got khasra No. 2155 and Rattan Singh got khasra No. 2158. Since khasra No. 2158 was more valuable so Rattan Singh gave 10 marlas out of khasra No. 2157 to Teja Singh for equalising the value of land. There was oral partition of khasra No. 2157 which was subsequently confirmed by agreement dated 10.1.1972 and so the suit in the present form is not maintainable. It was further pleaded that plaintiff has raised construction on some portion of the land which he got on partition and similarly, Teja Singh and Shangara Singh defendants have made construction on a portion of land which they got under oral partition. According to the defendants, their construction is about 40 years old. Thus, there is no joint land of the parties. In addition, it has been stated that the earlier suit filed by the plaintiff in respect of khasra No. 2157 was withdrawn.