DALU Vs. MATHURA PRASHAD

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and passing a preliminary decree for partition of the house in dispute.

(2.) The parties to the lis are the sons of Nawla, who died in the year 1947. Mathura Parshad son of Nawla, plaintiff-respondent (for short, the plaintiff) filed a suit for partition of the common property. Dalu son of Nawla, defendant-appellant (for short, the defendant) objected to the partition on the ground that the suit was bad for partial partition as a nauhra which was the common property of the parties had not been included in the partition.

(3.) The trial Judge upheld the objection and dismissed the suit being for partial partition. But, on appeal, the judgment and decree was reversed by the first appellate Court, which held that the plea of partial partition could only be sustained regarding joint property and not regarding common property. It took note of the fact that there was no plea or proof that the disputed house and the 'nauhra' were joint coparcenary properties of the parties to the lis.