Kalyan Dass vs Som Nath

J.V. Gupta, J.

This is defendant''s appeal against whom preliminary decree for partition has been passed by the trial Court.

The plaintiff respondent Som Nath filed the suit for possession by partition of properties Nos. 1 to 7 as detailed in the heading of the plaint, It was alleged that the aforesaid properties are jointly held by him and the defendants, the plaintiffs being owners of 1/2 share and defendant Nos. 1 to 6and the plaintiff being owner in 1/4th share and defendants Nos. 1 to 6 in 1/4th share defendants Nos. 7 to 9 in the remaining 1/2 share in property No. 7. In the written statement filed on behalf of the defendants, it was pleaded that the suit was bad for partial partition; for want of necessary parties. It was further pleaded that the plaintiff had sold out the property No. 7 during the pendency of the suit, and hence the defendants are prejudiced, and the purchasers of properties have not been brought on record. It was also pleaded that the shares of the parties have been wrongly stated in the plaint. On the pleadings of the parties, the trial Court framed the following issues:

(1) Whether the entire joint property has not been included in this suit, if so its effect ?

(2) What are the respective shares of the parties ?

(3) Whether the property mentioned at serial No. 6 of the plaint can not be made subjectmatter of the suit ?

(4) Whether the defendant has spent any amount from his own pocket to raise construction, if so, how much and its effect ?

(5) Whether Shakuntla Devi is a necessary party ?

(6) Whether Daya Shankar has executed a valid Will in favour of Som Nath plaintiff and Ram Nath ? OPP.

(7) Whether the suit is properly valued for the purpose of courtfee and jurisdiction ? OPP

(8) Whether the suit is bad for nonjoinder of necessary parties ? OPD.

(9) What is the effect of the plaintiff having sold a part of property during the pendency of the suit ? OPP.

(10) Relief.

Under issue No. 1, the trial Court found that there is no other joint property of the parties except the suit property. Under issue No. 2 the trial Court found the respective shares of the parties. Finding under issue No. 3 was that only Khasra No. 2256 of property No. 6 is subject to partition by this Court. The other two Khasra Nos. i.e. No 2258 and 2259 where left out being agricultural land. Under issue No. 4 the trial Court found that this will be decided at the time of the passing of the final decree. In view of these findings on the substantial issues, the trial Court decreed the plaintiff''s suit vide its judgment dated 13.12. 1976.

In the appeal filed on behalf of the defendants, only two contentions have been raised. One is that there was joint partnership business of the parties and that the same should have also been partitioned in the suit. However, the finding of the trial Court in this behalf is that no weight could be given to the oral evidence of the defendant that any other property was joint of the parties. Even the partition deed or the registration certificate of the firm Ram Nath Som Nath was not produced to show that Kalyan Dass is a partner in that firm. On that basis the trial Court found that the failure of the defendant to produce documentary evidence means that there is no other joint property of the parties. Thus, in these, circumstances, the plaintiff failed to prove that there was any joint partnership business. In the absence of evidence, no meaningful argument could be raised to challenge the said finding of the trial Court.

The next contention raised was that property No. 6 should have been excluded from partition as such, as all the three Khasra numbers consist of agricultural land. According to the learned counsel, simply because on one Khasra number buildings have been constructed did not mean that it ceased to be agricultural land and thus could be partitioned by the civil Court. I do not find any force in this contention either as estate assessed to the payment of revenue to the Government, do not cover lands which have been built upon and have become houses and factories and the civil Court has Jurisdiction to partition this property in view of the judgment of this Court in Rameshwar Nath v. Jageshwar Nath and others, 1953 P.L.R. 326.

No other argument has been raised. Consequently the appeal fails and is dismissed with costs.