POHLO RAM Vs. JINDU RAM

JUDGEMENT

(1.) This Regular Second Appeal has been filed by plaintiff appellant Pohlu Ram against the judgment and decree dated 7.6.2005, passed by the Additional District Judge, Ghumarwin, vide which the appeal filed by one for the defendants, namely, Jindu Ram was allowed, the judgment and decree passed by the trial Court were set aside and the suit of the plaintiff -was dismissed.

(2.) Pohlu Ram plaintiff had filed a suit for permanent injunction and fort, possession against the defendants with the allegations that the parties were co -sharers in joint possession of the land measuring 17 biswas and that partition order had been passed by the Assistant Collector 1st Grade but the partition proceedings were yet to be completed. It was alleged that even though the plaintiff had 1/3"1 share in the suit land, the defendants by taking undue advantage of the revenue entries had threatened to dispossess the plaintiff from the suit land. It was alleged that defendant No.2 had forcibly constructed house/shops over the suit land measuring 11 bighas and had thereby dispossessed the plaintiff from his 1/3rd share.

(3.) In the written statement filed by the defendant No.2, various preliminary objections were taken. It was alleged that at the instance of the plaintiff partition proceedings were initiated in the Court of Assistant Collector 1st Grade but the same pertained to different land measuring 9 -9 bighas. It was further alleged that in those partition proceedings the defendants had taken up the objection had private partition had already been effected between the parties about 15 years back and since then each share -holder was in possession of his share at the spot. It was further alleged that the two khasra numbers which are the subject matter of the present litigation were in his (defendants) possession and that the possession of the parties was not to be disturbed in the partition proceedings. It was further alleged that demarcation was conducted at the spot and those two khasra numbers were found to be in possession of the defendants. It was alleged that the partition was effected keeping in view the possession and the possession was not disturbed. It was alleged that the Assistant Collector 1st Grade vide order dated 4.6.1992 while determining the mode of partition had ordered that the possession should not be disturbed. It was alleged that the defendant was in possession of the disputed khasra numbers for the last 25 years and his possession had been confirmed by the Kanoongo vide his report dated 21.6.1990. It was denied that the plaintiff was in possession of any part of these khasra numbers or that he had 1/3rd share therein. It was alleged that the defendant was in possession of the suit land and had constructed a house thereon before the filing of the suit. It was further alleged that the objection regarding partition proceedings could not be taken before the Civil Court.