ORDER :

Ritu Tagore, J. (Oral) 

1. This is an appeal against the concurrent findings recorded by the learned Courts below, dismissing the suit of petitioner for possession by way of partition of a house, detailed in the plaint.

2. For convenience, the parties are referred to as per their original status before the learned trial Court.

3. The plaintiff, Sukhdev Raj, brought the suit for possession by way of partition of a house measuring 175 Sq . Yards, bearing No.3233/14 situated in Gali No 7, Wadda Haripura, Amritsar with the boundaries as detailed in the head note of the plaint.

4. In brief, plaintiff pleaded that parties to the suit are owners and in possession of their respective shares in the house in dispute. Plaintiff is in possession of a room measuring 8'6'X13'x4', situated at backside of the room of Dev Raj (defendant No.4). The disputed house is jointly owned by the parties to the suit. The plaintiff alleges that defendants are querulous individuals, who frequently engage in disputes with him without cause. In an effort to maintain peace, he wants to separate his possession. He requested the defendants to partition the house by metes and bounds but they have refused, necessitating him to file the suit.

5. As evident from the judgment of trial Court, defendant No.1 appeared and filed his written statement denying all the averments made by the plaintiff. Defendants No.2 and 4 did not appear, while defendant No.3 was reported to have died, with no LRs appearing on his behalf to contest the suit.

6. From the pleadings of the parties, learned trial Court framed the following issues:-

'1. Whether the plaintiff is entitled for possession by way of partition as prayed for? OPP

2. Relief.'

7. To support his version, Sukhdev Raj, the plaintiff appeared as PW-1, and reiterated the version of the plaint. Rakesh Kumar appeared as PW-2 and supported the version of the plaintiff. To counter the plaintiff's version, Soma Wanti wife of Hans Raj appeared as DW-1 and testified according to the stance outlined in the written statement.

8. Upon appraisal of the evidence, learned lower Court observed that plaintiff failed to substantiate his averments by his own material admissions and failed to establish that he is in joint ownership and possession of the disputed house.

9. The learned counsel for the petitioner contended that learned Courts below failed to properly appreciate the evidence presented on record. The learned Courts failed to note that parties to the lis are real brothers who inherited the disputed house from their father Amin Chand. The Courts below also failed to appreciate a material admission made by Soma Wanti-DW-1, testifying that plaintiff, alongwith defendants, his brothers jointly reside in the disputed house. It is stated that there is no better evidence to a fact than the admission. Learned counsel stated that learned Courts below seriously erred in ignoring the admitted factual position with regard to joint ownership and possession of the disputed house and wrongly focused on the statement made by the plaintiff. Furthermore, it is argued that suit for partition should not be dismissed due to non-joinder of the parties, as necessary parties can always be impleaded later. Learned counsel stated that there was no justification to deny the relief of partition and prayer is made to set aside the judgments of Courts below and suit of the plaintiff be decreed.

10. I have heard learned counsel for the petitioner and gone through the paper book and hold that the Courts below have rightly non-suited the appellant for the reasons stated below.

11. Firstly, there is a categorical admission made by the plaintiff that he is seeking partition of the house bearing No.3233/14 and in the same breath admitted that aforementioned house, for which he is seeking partition, is owned by the neighbours. It is appropriate to reproduce the findings of learned trial Court recorded in this regard, wherein cross-examination of the plaintiff has been repro