Heard the parties.

2. The defendant-appellant has preferred First Appeal No.53 of 2004 against the judgment and decree dated 21.07.2004 passed by the Subordinate Judge-II, Ranchi in Partition Suit No.153/2000 whereby and where under the learned court below has decreed the suit on contest and has ordered that a preliminary decree showing half share of the plaintiff in suit properties be prepared and while carving out the share of the parties the pleader commissioner shall take into consideration that minimum inconvenience is caused to the parties. The defendant- appellant has preferred the First Appeal No.19 of 2012 against the final decree dated 25.11.2011 passed by the Subordinate Judge-II, Ranchi in the said Partition Suit No.153/2000.

3. The case of the plaintiff in brief is that the plaintiff and defendant are full brothers. They are Hindu by religion and are governed by Mitakshra School of Hindu Law. The plaintiff and defendant through two registered sale deeds dated 12.07.1977 marked as Ext. 1 and the sale deed dated 12.10.1990 marked as Ext.1/A, purchased two properties in their joint name. Property purchased by sale deed dated 12.07.1977 is Schedule ‘1’ property of the plaint and property purchased by sale deed dated 12.10.1990 is Schedule ‘2’ property of the plaint. It is the further case of the plaintiff that plaintiff and defendant contributed equal amount for Schedule ‘1’ and Schedule ‘2’ property of the plaint and thereafter they constructed building by making equal contribution and they are in the joint possession of the properties and there has not been any partition between the parties. The plaintiff requested the defendant to amicably partition the suit property but the same was not accepted by the defendant, hence, this suit has been filed by the plaintiff.

4. The case of the defendant on the other hand is that the defendant has alone paid the consideration amount for purchase of the said two properties but the plaintiff is the younger brother of the defendant hence his name has been shown in the sale deed. It is also the case of the defendant that the suit property has already been partitioned between the parties in the year 1992 and the property has been divided in equal shares between the parties by oral partition. On the first floor of the building, the parties are residing in separate blocks in their respective shares and the plaintiff is enjoying the western portion while the defendant is enjoying the eastern portion. It is further the case of the defendant that only stair case of the building has been kept for enjoyment of both the parties and that the plaintiff did nothing towards the acquisition of the properties or construction of the building but the defendant being the elder brother and considering the fact that the plaintiff is residing with him, has already given equal share to the plaintiff. It is also the case of the defendant that the plaintiff after partition is doing separate business at Lah Kothi, Ratu Road and defendant is doing separate business as Piska More Itki Road, Ranchi under the name and style of Prakash Engineering Works. Previously the plaintiff and the defendant were doing partnership business which was dissolved and plaintiff took all his shares in cash and share by executing necessary documents in this regard. It is further the case of the defendant that the plaintiff took Rs.33,000/- from the defendant for the shop situated at Itki Road.

5. On the basis of the pleadings of parties the following eight issues were framed:-

(i) Is the suit as framed maintainable?

(ii) Has the plaintiff valid cause of action for the suit?

(iii) Is the suit barred by adverse possession and ouster?

(iv) Has the suit been properly valued and is the court fee paid sufficient?

(v) Is their unity at title and possession between the parties to the suit?

(vi) Whether there has been a previous Partition in the year 1992 as alleged by the defendant?

(vii) Is the plaintiff entitled to a decree of Partition