BALA DEVI Vs. BALAK RAM

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 4.12.2008 passed by the learned Additional District Judge, Sirmaur at Nahan in Civil Appeal No.11- N/13 of 2008.

(2.) Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit before the learned Civil Judge (Senior Division), Sirmaur at Nahan seeking partition of the property, as detailed in para 1 of the plaint, by way of partition and allotment of half share to him. According to him, the suit property was jointly owned and possessed by the parties and he was having half share and the defendant was also having half share. He has purchased half share in the suit property from its previous co-sharer Ram Kumar for a consideration of Rs. 1,10,000.00. The mutation bearing No. 207 was attested in his favour on 16.1.2002. He requested the defendant to get the suit property partitioned mutually and amicably but the defendant kept on avoiding his request. According to him, he being the co-sharer in the suit property is entitled for separation of his share in the suit property by way of partition.

(3.) The suit was contested by the defendant. It was denied that the plaintiff was in possession of the suit property. It was averred that Niranjan Singh was the exclusive owner of the property, which has been succeeded by the defendant. Plaintiff has no concern with the suit property. The revenue entries showing the plaintiff as co-sharer with the defendant in the suit property are false, wrong and illegal. According to the defendant, she was exclusive owner in possession of the suit property. It was also denied that Ram Kumar or his predecessor Guddi Devi was having title over the suit property. According to her, since Ram Kumar had no title in the suit property as such sale of half share by him on the basis of wrong revenue entries in favour of the plaintiff was illegal and not binding upon the defendant. According to her, the mutation has been attested wrongly. According to the defendant, plaintiff was not related either to Ram Kumar or his father Niranjan Singh. He was completely stranger and as per section 4 of the Partition Act, the access of a stranger purchaser in the dwelling undivided house of the family was to be kept out and since the plaintiff had filed a suit for partition of a dwelling house belonging to undivided family and sought possession of his share, she being member of undivided family and was residing in the dwelling house be permitted to buy the share of the plaintiff on payment of consideration of the sale deed.