PRADEEP KUMAR PANDEY Vs. ALOK KUMAR PANDEY

JUDGEMENT

(1.) The instant Civil Miscellaneous Application has been filed for setting aside the order dtd. 6/4/2023 passed in Partition Suit No. 156 of 2017, whereby and whereunder the learned court below has allowed the petition filed by the plaintiff (Respondent No. 1) and directed defendant Nos. 1, 2 and 5 to produce their witnesses on the next date.

(2.) Heard learned counsel for both the parties.

(3.) Learned counsel for the petitioner submits that the plaintiffs have instituted Partition Suit No. 156 of 2017 in the court of the learned Sub Judge, Bagaha, seeking a declaration that there exists unity of title and unity of possession between the plaintiff and the defendants over the suit property, wherein the plaintiff claims 6/20 share, and for passing of a preliminary decree for partition, followed by carving out a separate takhta of his share. It is further submitted that after appearance, a joint Written Statement was filed on behalf of Defendant Nos. 1 and 2, and a separate Written Statement was filed on behalf of Defendant No. 5, wherein it has been stated that the suit is not maintainable for non-joinder of necessary parties. It has also been stated in the Written Statement that partition had already taken place with respect to certain properties in the year 1988, and the allegation regarding subsistence of joint family and unity of title and possession has been specifically denied on the ground that the same ceased in the year 1988 itself. It is further submitted that the plaintiff filed a petition on 9/12/2022 in Partition Suit No. 156 of 2017 stating therein that, upon perusal of the Written Statements filed by Defendant Nos. 1, 2 and 5, it is evident that partition in the family of the petitioner 's father and his sons had already taken place in the year 1988, and thus there is no unity of title and unity of possession between the parties. On this basis, the plaintiff prayed before the court for issuance of a direction to Defendant Nos. 1, 2 and 5 to adduce their evidence first, in view of the alleged admission in the Written Statements. The said petition has been allowed by the impugned order dtd. 6/4/2023, which is under challenge before this Court.