SUKHDEV RAJ Vs. BABU RAM

JUDGEMENT

(1.) THIS Regular Second Appeal has been filed against the judgment and decree dated 11-03-1981 passed by the learned District Judge, Roop Nagar, vide which suit filed by the plaintiff for separate possession by means of partition of the joint property in question was ordered to be decreed.

(2.) PLAINTIFF -respondent No. 1 herein had brought a suit against Sukhdev Raj and Dev Raj, defendants for separate possession by way of partition of the joint property i.e. two shops, one house and the site thereunder marked as ABCDEF as described in the head-note of the plaint. It was pleaded that Babu Ram and defendant Nos. 1 and 2 along with their brothers, Megh Raj, Madan Gopal and Hem Raj, purchased a plot described in the head-note of the plaint for a consideration of Rs. 7330/- vide sale deed dated 29-01-1969 from one Jamadar Singh son of Hans Raj. The plaintiff had 2/7th share in the plot, whereas defendant Nos. 1 and 2 alongwith their brothers Megh Raj, Madan Gopal and Hem Raj had 5/7 shares therein. The plaintiff, defendant No. 1 and Megh Raj, Madan Gopal and Hem Raj, constructed shops on the vacant site. The plaintiff and defendant No. 1 purchased the share of their brothers in the site along with the shops constructed thereon in equal shares vide sale deed dated 30-9-1974 for a sum of Rs. 8500/-. The plaintiff and defendant No. 1, therefore, became the owners in possession of two shops to the extent of half share each. It was further averred that the plaintiff and defendant No. 1 constructed a house jointly in the rest of the plot marked as CDEF as shown in the site plan. It was also claimed that the plaintiff and defendant No. 1 had half share each in two shops as well as half share each in the house. The plaintiff was said to be having 3-1/2/7 share and defendant No. 1 had 2-1/2/7 share and defendant No. 2 had 1/7 share in the site underneath the building shown as ABCDEF in the site plan. On these pleadings, the possession by way of partition was sought.

(3.) ON the pleadings of the parties, following issues were framed :