JUDGMENT :

SUDESH BANSAL, J.

1. This is plaintiff’s appeal under Section 96 of Code of Civil Procedure and arises against the judgment dated 02.06.1992 passed in Civil Suit No. 87/1983 by the Additional District Judge, Gangapur City, dismissing a civil suit for partition of an immovable property, a Guwadi, situated in town Gangapur City, District Swai Madhopur.

2.1 It was, inter alia, pleaded in the plaint that parties are Muslim and both plaintiff and defendant are real brothers.

2.2 It was pleaded that the immovable property, a Guwadi, described in para 1 of the plaint was purchased by father Shri Vazeer Khan from one Hazari S/o Chand Khan, Musalman through registered sale deed dated 31.01.1955 and later on in the year 1968, pakka construction of shops and rooms were raised in the northern portion of Guwadi out of funds incurred by father, while the southern portion of Guwadi remained as kham patol. Later on, pakka construction was raised out of joint funds of plaintiff and defendant in the southern portion, as also on the upper floor, two rooms, one hall and one verandha were got constructed after death of father.

2.3 The suit property in question along with construction as existed at the time of filing of the suit, is shown by red color, marked ABCD at ground floor, EFGHIJK at first floor in the map (Ex-1) appended with the plaint.

2.4 It was pleaded that even after death of father, the suit property remained in joint ownership and possession of plaintiff and defendant but when plaintiff asked for partition of the suit property, defendant declined on 18.11.1982, hence, on accrual of cause of action, the present suit was filed on 20.11.1982.

2.5 It was also pleaded by plaintiff that one another house of father at village Sapotara was situated, which was sold by father to one Ramji Lal against sale consideration of Rs.8000/- in the year 1968 and out of that fund as also of his own funds, father raised construction of shops and rooms in the suit property in the year 1968. Plaintiff has also pleaded in para No. 7 of the plaint that 12 tola gold and Rs.3000/- of father, remained in possession of defendant. However, decree for partition prayed for in respect of immovable property shown by red color in the map appended with the plaint.

3.1 Respondent-Defendant, in his written statement has admitted that the suit property was purchased in the name of Vazeer Khan, father of plaintiff and defendant but has pleaded that apart from the suit property situated in Gangapur City, another house and bada as also agricultural land of father were situated in village Sapotara.

3.2 It was pleaded that in the lifetime of father, properties were divided orally with the consent of both parties in the year 1960 and the suit property, situated in Gangapur city came in share of the defendant and other immovable properties including house, bada and agricultural land situated in Sapotara came in share of the plaintiff. Thereafter, both parties have been in possession of their respective properties as owners.

3.3 It was pleaded that defendant became absolute owner and in possession of the Guwadi in question, and in the year 1962 defendant obtained permission in his own name from Nagar Palika, Gangapur City for construction in Guwadi, and got constructed shops and rooms thereupon by incurring his own fund. The plaintiff has not nexus or concerned with the construction over the Guwadi in question.

3.4 Later on, when plaintiff sought to sale the house at Sapotara, defendant and father apprehend that after sale of house plaintiff may laid claim right on the house at Gangapur City, therefore, on 29.10.1968 settlement deed (Ex-A1) was got executed by parties in favour of each other. The settlement deed was written on stamp paper through scriber Ram Dayal and duly signed by plaintiff, accepting the property of Gangapur City to be given to defendant. Thereafter, plaintiff sold house situated at Sapotara to one Ramji Lal against sale consideration of Rs.8000/- and sale dee