The application was replied by the plaintiff.
Brief facts of the case which are necessary to be numbered for deciding this appeal are Signature Not Verified Digitally signed by ASHWANI KUMAR Date 2018.03.24 125151 IST Reason We shall refer the parties as described in the plaint.
Southern portion of the house came in the share of the plaintiff and numberthern part came in the share of the defendant.
Aggrieved by the said order, the plaintiff has companye up in this appeal.
Plaintiff prayed for decree of possession against the defendant as well as decree of permanent injunction.
A Civil Suit No.5 of 2010 was filed by the plaintiff praying for partition of the residential house as well as the shop.
Against the said order dated 03.03.2015 writ petition was filed by the plaintiff which was dismissed by the High Court upholding the order of the trial companyrt.
According to memorandum of settlement both residential house as well as shop in the Aguna Bazar were distributed as decided by their late father.
It was pleaded by the defendant, in view of the aforesaid, that there was numbercause of action for the plaintiff to file a partition suit.
The civil companyrt accepted the case of the defendant that the parties which were in joint family have been divided, there being numberhing joint between the parties, there is numbercause of action for the plaintiff for filing the suit for partition.
The late father, however, did number execute any settlement deed.
The memorandum of settlement was signed by mother of the parties as well two sisters had signed as witnesses.
An application under Order XIII Rule 3 CPC and Article 45 and Section 35 of the Indian Stamp Act and Sections 17 and 49 of the Indian Registration Act, was filed by the defendant claiming that document dated 09.09.1994 being number a registered document and being number properly stamped is number admissible in evidence, same may be rejected.
Defendant prayed that suit of the plaintiff is liable to be dismissed.
In the suit an application under Order VII Rule 11 of the Civil Procedure Code was filed by the defendant, Ramvatar Bhama taking the plea that on 25.10.1992 during the life time of Shri Devi Dutt Verma, the father of the plaintiff and defendant, had partitioned the house and the shop.
The relief for permanent injunction was also held to be related to the partition.
Plaintiff and respondent are real brothers being sons of late Devi Dutt Ji Verma.
Another Civil Suit No.4 of 2011 was filed by the plaintiff claiming that after dismissal of the earlier suit of the plaintiff on 19.01.2011, defendant broke open the lock of the house and took possession of the house.
Plaintiff also sought for mesne profit and expenses.
Devi Dutt Verma died on 10.09.1993 and thereafter on 09.09.1994 plaintiff and defendant recorded a memorandum of settlement as decided by their father regarding his selfacquired properties.
In the suit, plaintiff has filed the document dated 09.09.1994 evidencing family settlement which was claimed by the plaintiff as memorandum of settlement.
Plaintiffs case is that his father Devi Dutt Verma on 25.10.1992 decided to divide his selfacquired movable and immovable properties between plaintiff and defendant.
The trial companyrt vide its order dated 19.01.2011 allowed the application filed by the defendant under Order VII Rule 11 CPC and dismissed the suit for want of cause of action in favour of the plaintiff.
The trial companyrt vide its order dated 03.03.2015 allowed the application of the defendant holding that the document dated 09.09.1994 is a family settlement deed and a relinquishment document which is number admissible as evidence being inadequately stamped and number being registered.
In companyfirmation of the earlier partition dated 25.10.1992 the family settlement dated 09.09.1994 was executed which was signed by the plaintiff and defendant along with both the sisters as well as mother.
ASHOK BHUSHAN, J. The appellant, who was plaintiff in Civil Suit No.4 of 2011, has filed this appeal questioning the judgment of the High Court of Judicature for Rajasthan at Jodhpur dated 23.01.2017 by which writ petition filed by the appellant against the order dated 03.03.2015 of the Additional District Judge has been dismissed.
