JUDGMENT

PRAKASH GUPTA, J. - The instant first appeal has been preferred against the judgment and decree dated 12.12.2008 passed by the learned Additional District Judge (Fast Track) No.1, Dholpur (hereinafter "the trial court") whereby the suit filed by the plaintiff-appellant for partition of joint immovable properties was dismissed.

FACTS IN BRIEF

2. The facts giving rise to this first appeal can be briefly stated as thus: That the plaintiff-appellant filed a suit for partition of joint immovable properties against the defendants-respondents. It is the case of the plaintiff-appellant that the defendants-respondents No.1 & 2 are his real brothers and together, they are the legal heirs of his father late Sri Kailash Chand, who passed away on 12.05.1996. The father of the plaintiff and defendants owned several movable and immovable properties. The details of the property which form the subject-matter of the appeal are mentioned in Para 2(A) of the plaint. It was stated in the plaint that since the plaintiff is one of the legal heirs with defendants No.l & 2, he is entitled to l/3rd share in the said properties and now he wants to get the properties partitioned by meats and bounds so as to get separate and exclusive possession over the 1/3rd share. On the basis of these averments, the plaintiff- appellant prayed that the properties, the details of which have been given in Paragraph 2(A) of the plaint, be partitioned by meats and bounds and he be put in separate and exclusive possession of his 1/3rd share.

3. The defendants-respondents No.1 & 2 resisted the suit by filing written statement. While the factum of their father having purchased the properties mentioned in the plaint was admitted, it was averred in the written-statement that the defendants- respondents No.1 & 2 were the sole owners of the said properties by virtue of a Will allegedly executed by their father on 30.07.1995. It was further stated that as per the said Will, the plaintiff-appellant has no interest, right or concern with the properties in dispute. Further, some of the properties left behind by their father were sold by them as per the direction given in the Will so as to clear the outstanding dues that their father owed to some creditors. It was also stated in the written statement that the plaintiff-appellant was actually given comparatively more share in the properties of their father, which he occupied forcefully. The defendants-respondents also raised objections regarding the sufficiency of the court fees. Based on the said averments, they prayed for the suit to be dismissed.

4. Since a new fact regarding the existence of the Will allegedly executed by Late Sri Kailash Chand was brought on record, the plaintiff-appellant sought the permission of the court to file a rejoinder. However, the learned trial court vide its order dated 03.05.2007 allowed the application and instead of permitting the plaintiff-appellant to file a rejoinder, allowed him to incorporate additional facts in the plaint by way of an amendment. The plaintiff-appellant thus, amended the plaint and incorporated the additional facts through which he denied the execution as well as the existence of any Will. In order to further bolster his averments, he stated that a joint application was filed by the plaintiff and defendants No.1 and 2 for obtaining succession certificate in respect of Rupee 50,000 deposited by their father with the State of Bank of India and also in respect of Rupees 2,00,000 which was the amount of final bill for the work that Late Sri Kailash Chand had done for PWD, Dholpur. During the pendency of the succession certificate proceedings, no such Will was disclosed by the defendants. On the contrary, Ramesh Chand (Defendant No. 2 herein) in his statement dated 10.09.1996 admitted that no Will had been left by their father i.e. Late Sri Kailash Chand. Noting these statements, the Succession Certificate in the name of all three sons i.e. the plaintiff-appellant and defend