Hon’ble B.S.Verma, J. (Oral)

Heard learned counsel for the appellants as well as learned counsel for the respondents and perused the record including the impugned judgment and decree.

2. This appeal by plaintiffs is directed against the judgment and decree dated 29-7-2005 passed by the District Judge, Bagshwar, in Civil Suit No. 28 of 2001, Jiwan Lal Sah and others Vs. Smt. Khashti Sah and others, whereby the suit for partition filed by the plaintiff-appellants has been dismissed.

3. Briefly stated the facts giving rise to the present appeal are that initially the plaintiff-appellants filed a suit for partition, which was registered as Original Suit No. 28 of 2001 in the court of Civil Judge (Senior Dvision) Bageshwar alleging therein that the parties to the suit are Bhumidhars of the house, appurtenant land, Angan Bara recorded in Khatauni Khata no.13 of village Katyur Math, Talla Katyur, Bageshwsar. According to the plaintiffs one of the ancestors of the plaintiffs, namely late Har Lal Sah Son of Mohan Lal Sah had sold his 1/4th share in plot no. 470 and plot no. 469 comprising house, land and Bara to one Sri Indra Lal Sah s/O late Jai Lal Sah by a registered sale deed dated 20-1-1942 and thus, the legal heirs of deceased Indra Lal Sah became owner to the extent of 1/4th share in Plot no. 13. Late Indra Lal Sah left behind two sons, namely Sri Girdhari Lal and Kailash Lal Sah, whose names were recorded in the Khatauni and both of them have already died and the defendants have been recorded in the revenue records as legal heirs of their predecessors. Plaintiffs have further alleged that they are exclusive owner of 3/4th share of the house, Angan, Bara recorded in Khata No. 13, while defendants are owner of 1/4th share thereon. In the suit, the plaintiffs have prayed for partition of only 3/4th share in the property mentioned in plot nos. 470 and 469 of Khata No. 13 comprising house, Bara and land and that decree be passed against the defendants and after partition, possession of 3/4th share be given to the plaintiffs.

4. All the three defendants resisted the suit by filing their written statement. The defendants have only admitted that the parties are Bhumidhars of the property in question but have denied the plaint allegations made in paragraph no. 2 to 9. In the additional pleas, the defendants have asserted that the ancestor of the defendant Late Indra Lal Sah purchased the land and house of Khata no. 13 through a registered sale deed dated 20-1-1942 and since then, they are continuously in possession of the entire 15 Muthi land and houses constructed thereon and that the plaintiffs were never in possession of the suit property. It has also been pleaded that the ancestors of the plaintiffs were residing permanently in Thana Bazar, Almora. In paragraph no. 12, it has inter alia been pleaded that the plaintiffs with ulterior motive had sold two-muthi land of Khata no. 13 without delivery of possession to one Devi Lal Son of Shyam Lal, therefore, co-tenure holder has not been arrayed as party to the suit and the suit is bad for non-joinder of necessary parties. In paragraph no. 13 of the written statement, it has been pleaded that a part of the suit land is being used as field for agriculture by the defendants, therefore, the revenue Court has jurisdiction to hear the suit for partition.

5. Learned Civil Judge (Senior Division) Bageshwar framedfollowing Issues in the suit:-

ISSUES

1. Whether out of the disputed land, the plaint ifs are entitled to get the land to the extent of their ¾ share partitioned? If so, its efect?

2. Whether the suit of the plaint ifs is liable to be dismissed for want of jurisdiction as has been pleaded in paragraph 13 of the written statement?

3. Whether the suit has been undervalued and the court fee paid is insuficient?

4. To what relief, are the plaintifs entitled?

6. A perusal of the record shows that the suit was subsequently transferred to the court of the District Judge Bageshwar.

7. O