AMOL RATTAN SINGH, J.

This is the second appeal of the plaintiff in a suit instituted by him on 21.12.1983, seeking possession of the suit property after its partition.

The suit having been dismissed by the learned Sub Judge IInd Class, Rohtak, on 11.09.1986, and the first appeal against that judgment and decree also having been dismissed by the learned Additional District Judge (II), Rohtak, vide his judgment and decree dated 14.01.1988, the present second appeal came to be instituted.

2. The facts of the case are being taken from the judgments of the learned Courts below, a perusal of which reveals that as per the appellants' plaint, he and the defendant are brothers, who owned and possessed various immovable property, including a double storeyed house (Haveli), a parlour (described in the judgment of the learned Sub Judge as a Darwaja), some plots and agricultural land.

3. It was further stated that the agricultural land had been partitioned since long but the rest of the property, the full details of which were given in paragraph 2 of the plaint, continued to be jointly held. However, for the sake of convenience, the plaintiff had started using the Darwaja described in para no.2 (b) of the plaint, and the defendant had started using the rest of the house.

Similarly, a plot described in paragraph 2 (b) (i) of the plaint was also stated to be possessed by the plaintiff, whereas the plot mentioned in paragraph no.2 (d) was jointly possessed by the parties.

It was further contended that a settlement had been arrived at on 05.05.1957 between the parties, qua all the properties detailed in paragraph no.2 of the plaint. However, the settlement was ignored and was subsequently cancelled and in proceedings under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, the parties had again arrived at a settlement, which was reflected in the orders of the Director, Consolidation, and the Consolidation Officer, Rohtak, dated 26.05.1975 and 05.01.1976 respectively. The parties had thereby been held to be joint owners of plots no.226 and 227, detailed in paragraphs no. 2-c and 2-d of the plaint.

4. The plaintiff is further stated to have got residential plot no.224 in exchange of his agricultural land, upon which he had constructed a house with his own earnings (as per the averment in the plaint).

The opening of this house was stated to be in plot no.226, which was again stated to be in possession of the plaintiff.

Thus, it was further contended that the plaintiff continued to be in possession of a part of the Haveli and Darwaja, and plots no.226 and 227. Yet, (again as per the plaintiff), he and the defendant were facing great difficulty in actually using this joint property and therefore he had requested the defendant a number of times for an equitable settlement to the effect that plot no.226 and half of the Haveli, including the Darwaja, should be acknowledged to be in his (plaintiffs') ownership and possession, with the rest of the property to be in the ownership and possession of the defendant.

However, the defendant not having agreed to the proposal, the suit was instituted.

5. Upon notice issued, the defendant appeared and filed a written statement denying the allegations of the plaintiff except that the parties were brothers and that there had been a family settlement on 05.05.1957. The joint nature of the house and the plots was specifically denied.

As per the defendant, the house and a gher were separately owned and possessed by the parties, though agricultural land was admitted to have been partitioned between them during the process of consolidation of land. It was further contended that “the alleged Darwaja is not separate property but in the part of the house”. The defendant further contended that the Darwaja was not jointly used and that in fact, the whole property was in his (defendants') exclusive possession.

It was further contended that plot no.226 was owned and possessed by him