Proper pleadings and evidence are necessary for claiming partition, and the absence of such evidence can lead to the dismissal of the suit.

JUDGMENT :

(Jyotsna Rewal Dua, J.)

Aggrieved against the concurrent judgments and decrees passed by the learned Courts below, dismissing his suit, the plaintiff has invoked Section 100 of the Code of Civil Procedure.

2. Facts:-

2(i). Appellant was the plaintiff before the learned Trial Court. Suit for declaration under Section 34 of the Specific Relief Act, 1963 was instituted by him seeking partition of the suit land between him and the defendants to the extent of half share each firstly by passing the preliminary decree.

The case of the plaintiff was that the suit land was co-owned and co-possessed by him and the defendants to the extent of half share each. The suit land in the revenue record was depicted as “Abadi Deh”. The suit land had been coming in possession of ancestors of parties and after their death, it had devolved upon the plaintiff and the defendants.

The plaintiff had, inter alia, pleaded that he and the defendants had raised some constructions on the suit land. In paragraph 2 of the plaint (produced by learned counsel for the appellant), reference was made to photograph showing the location and position of the construction raised by the parties. In this very paragraph, the plaintiff further goes on to plead that some constructions raised by the defendants over the suit property could not be photographed by the plaintiff and therefore, identity of such constructions will be established after the passing of preliminary decree. It was also pleaded that relationship between the parties became strained, therefore, need had arisen for the plaintiff to pray for partition of the suit land.

2(ii). The suit was contested by the defendants. They claimed themselves to be in exclusive possession over the suit land. The defendants denied that the suit land was owned and possessed to the extent of half share by the plaintiff.

2(iii). Learned Trial Court allowed an application moved by the plaintiff for appointment of Local Commissioner. The Local Commissioner submitted his report dated 20.05.2016. After considering the evidence adduced by the parties, their pleadings and the report of Local Commissioner, learned Trial Court vide its judgment and decree dated 28.07.2021, held that there was nothing on record to show the extent of the share of the parties in the suit land as claimed by the plaintiff. That in the Jamabandi for the year 2006-07 (Ext. PW-1/B), the suit land was recorded under the ownership and possession of “Abadi Deh”. All the villagers including the parties to the lis are joint owners of the Abadi Deh having proprietary interest therein. Therefore, the version of the plaintiff that the suit land was owned to the extent of half share each by him and the defendants cannot be accepted to be correct. Learned Trial Court also returned the factual finding that no document had been placed on record to show the extent and manner to and in which the co-sharers or the parties to the suit made use thereof and proportion in which the expenditure, if any, incurred thereon and the profits, if any, derived therefrom are to be borne by and divided by those persons or any of them. Accordingly, the civil suit instituted by the appellant was dismissed.

2(iv). The first appeal preferred by the plaintiff was also dismissed on 16.12.2022. Learned First Appellate Court also returned the factual findings that:- the parties were not clear about the legal position; No specific pleading had been made regarding the land, which was either lying vacant or constructed upon; Whether there is any divisible portion left or not in the suit land, nature of which was abadi deh, will have to be decided on the basis of proper pleadings and evidence; Such pleadings and evidence should be able to claim partition having permitted one of the co-sharer to spend money and raised construction on a portion or the entire suit land, which was joint. Learned First Appellate Court accordingly held that no such record was available to show the extent and manner in which