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The judgment and decree dated 20.9.2018, passed by the ADJ, San Francisco and judgment and decree dated 31.1.2018 passed by the Civil Judge (Junior Division), San Francisco, is against the law and facts on record and the same is liable to be set aside. The pleadings as well as material evidence on record have been misread, misconstrued and misapplied to the facts of this case, resulting in material prejudice to the legal represented appellant. Wholly conjectural approach of the whole case has been adopted by the Courts below, resulting in failure of justice.
The impugned judgments and decrees are the result of conjectures and surmises and are not legally sustainable, therefore, liable to be set aside. The judgments of the courts below are erroneous in this case and as a result of these judgments the procedure will prevail over substantial justice. The joint land has got to be partitioned between the parties. By any stretch of imagination it cannot be held that any land will never be partitioned especially when the previous suit was never decided on merits. Not allowing the partition of any property would lead to anomalous situation as same would mean that the property would never be partitioned among the co-sharers and in this logic the successor in interest of the parties would also not be able to pray for partition as they would also be bound by the previous judgments. That it is worthwhile to mentioned here that the courts below have correctly held that the property to be joint in nature and hence the courts below were required to pass a decree of partition as the legal was not asking for any new right in the property but only wanted to get the property partitioned by metes and bounds. The nature of the partition proceedings have been completely ignored by the courts below. The brief facts of the case are that the appellant/plaintiff is plenum-dominum to the extent of half share of the suit property purchased by parties to the present litigation through registered sale deeds in equal shares within the municipality area in San Francisco. The construction over the property is also joint. The suit property is jointly purchased, owned and occupied by the appellant and respondent to the extent of ½ share each. The legal has allowed the respondent to use and occupy the ground floor as well as the first floor of the property.
The legal and respondent had good relations till 2018. After that relation between them became strained and appellant time and again requested the respondent to partition the suit property by metes and bounds. The respondent initially agreed, but later on became dishonest and avoided the partition till 20.8.2018 and on 22.8.2018 respondent flatly refused to pay any kind of heed to the request of the plaintiff-appellant for the peaceful partition of the suit property. Thereafter, the legal was constrained to send a legal notice to the respondent which was duly served, but was not replied by the respondent. The legal was constrained to file civil suit to seek the partition of the suit property mentioned above by way of civil suit. However, during the trial of the suit respondent being relative of the appellant persuaded the appellant to withdraw the aforementioned suit, so that matter may be compromised. Relying on the promise made by the respondent that he will compromise the matter the legal withdrew the said civil suit.
