PHUSARAM Vs. LEKHRAM

JUDGEMENT

(1.) This is the unsuccessful plaintiffs appeal, whose suit for partition of an estate was decreed by the trial court, the first appellate court, modifying the same by making it conditional upon payment of some money.

(2.) We have heard the learned counsel appearing for the parties and have gone through the record as well. The facts of the case relevant for the purposes of the present appeal are not much in dispute. Basti Ram, Lekh Ram and Phusa Ram are the co -owners in this estate. Basti Rams share is one -half, and Lekh Ram and Phusa Ram have one -half each in the other moiety. The land was under mortgage with one Taru and it was subsequently redeem -med.Basti Ram paid one of the mortgage money, and is in possession of his share which is not in dispute in the present case. Phusa Ram brought a suit for partition of the other half against Lekh Raj and his brothers. Basti Ram, Jailal and Beerbal were also impleaded as defendants. Only Lekh Ram defendant contested the suit and his plea was that Phusa Ram had not paid his share of the mortgagee money paid by Lekh Ram to the mortgagee and as Lekh Ram stands subrogated in the possession of the mortgagee after redemption of the mortgage hence Phusa Ram is not eligible to sue for partition. The trial court held that the plea taken up by Lekh Ram was wrong on the point of fact as the money had been paid both by Pusa Ram and Lekh Ram. The suit was accordingly decreed. Lekh Ram went up in appeal before the learned Divisional Commissioner Bikaner who held that Pusa Ram had not paid his share of the mortgage money and hence he could not claim partition without the payment of that amount to Lekh Ram. Pusa Ram has come up in second appeal before us.

(3.) It has been argued on behalf of the appellant that direction regarding payment of money as a condition precedent to the passing of the decree cannot be properly made in a suit for partition.