Heard Sri RP. Nautiyal, couns.el for the appellant and Sri Bindesh Kumar Gupta and Sri Sanjeev Sah counsel for the respondent.

2. Present appeal has been preferred against the judgment and decree dated 4-72002 passed by the District Judge, Nainital in Civil Appeal No. 40 of 2001.

3. Briefly stated that a suit No. 59 of 1996 was instituted by the plaintiff / respondent before the Civil Judge (JD), Nainital for perpetual injunction, with the allegations that the plaintiff and the defendant are real brothers. There are two other brothers Bharat Lal Sah and Bashkar Lal Sah. All the four brothers had a joint ancestral property including the property situated at Ayarpatta, Mallital, Nainital known as Priory Lodge, Priory Cottage and Fern Cottage. On 1-7-1986 a family partition took place between all the four brothers and according to the family settlement dated 1-7-1986, the following property came in the share of the plaintiff / respondent:

"Ram Niwas Champa Naula, Almora, house and land plus Western half portion of priory cottage, Nainital."

4. In the same partition following property came in the share of the defendant I appellant.

"Half East portion of Priory Cottage and half po