SWAMI SARAN KHAJURIA Vs. SAHIB SARAN KHAJURIA

JUDGEMENT

(1.) A suit for partition by metes and bounds and separate possession of House No. 444 -A Gandhi Nagar, Jammu was filed by the plaintiff -respondent against the petitioner. The frame of the suit indicates that Plot No. 444 -A Gandhi Nagar, Jammu was allotted to father of parties. The said house was built in the year 1965 and thereafter additions and alterations were made by the father of the parties from time to time as averred in the plaint. After his death he left behind petitioner -plaintiff and defendants No. 1 to 4 as legal heirs. plaintiff -respondents claims that the property be partitioned by meters and bounds. In their written statement, defendants admitted that Plot No. 444 -A Gandhi Nagar, Jammu was allotted to father of the plaintiff and defendants. It has also been admitted by them that the house comprising of five rooms, two kitchen, one verandah, one bath room, one latrine and staircase was constructed by the father of the parties in the year, 1965. The defendant -respondent has in para -3 of written statement admitted that the partition of the property has taken place and in alternative he has stated in case such a partition was not effected, then petitioner's right had matured by adverse position. In para -5 of written statement the defendant has again admitted that defendant -petitioner by way of oral family settlement five marlas of land duly allotted to father of the parties was given to the respondent -defendant. Again in para -8 of written statement it is admitted by defendants that oral settlement took place in the year 1990 in respect of the same property.

(2.) THAT during the course of trial application for amendment was made which was allowed and amended written statement was filed. In the preliminary objections the defendant has raised a plea that the land on which father of the parties raised construction was allotted to him by the State Government. It has further been averred that since the property belongs to State Government and no ownership right was conferred upon father of the parties, the plaintiff is disentitled to maintain the suit for partition. The petitioner filed an application which was granted seeking permission to file replica to the written statement. While replying preliminary para in the written statement the plaintiff -petitioner has stated that the plot allotted to the father of the parties was made for perpetuity and ownership rights had been conferred after the whole amount which was the cost of the plot was realized by the State Government. Defendant has filed an application under Order 6 Rule 16 CPC for rejection of application and for striking out the pleadings by the plaintiff in the replica on the ground that no permission was sought by the plaintiff for filing replica and the replica filed by the plaintiff otherwise cannot be construed or treated as pleadings because plaintiff has abused the order of the court dated 6.2.2005 in introducing such a plea of facts which in law cannot be introduced and pleaded except with the permission of the court. This application was considered by the trial court. Objections to said application have been filed by the respondents whereby it has been stated that permission was granted by the court to file replica and no new plea of facts or law has been raised in the replica. According to the objections filed by respondent No. 1 the new fact raised in the written statement was that the ownership of the suit property was not conferred upon father of the parties as such no suit for partition could be filed.

(3.) I have heard learned Counsel for the parties and examined the record.