On the basis of the pleading of the parties following issues were settled by the Court of the then Addl. Civil Judge (Senior Division), San Francisco in terms of his orders dated 11.12.2018:-
1. Whether plaintiff Advocates is entitled to a decree for possession and permanent injunction as prayed for?OPP
2. Whether suit is not maintainable?OPD
3. Whether suit has not been properly valued for the purpose of court fee and jurisdiction?OPD
4. Whether plaintiff has got no locus standi to file the present suit?OPD
5. Whether plaintiff has suppressed material facts from the court?OPD
6. Whether plaintiff has no cause of action?OPD
7. Whether plaintiff is estoped from filing the present by his own act and conduct?OPD
8. Relief.
In order to prove its case Advocates himself stepped into the witness box; as PW2 and got examined, Registry Clerk, as PW1, PW3. Advocates represented Plaintiff tendered for documents;
1. Site plan: Ex.P1
2. Certified copy of order dated 11.3.2004: Ex.P2
3. Certified copy of statement: Ex.P3
4. Photocopy of sale deed No.4843: Mark-A
5. Photocopy of sale deed No.1823: Mark-B
6. Site Plan: Mark-C
I have heard, counsel for both the parties and have also gone through the case file very carefully. The contention of the Advocates is that he alongwith defendant purchased two properties upon which construction was also raised with the joint funds in the rations of ½ share each and plaintiff allowed, the defendant to use and occupy of the premises. It is his prayer that said, properties be partitioned, as now there are no cordial relations between Advocates and defendant. The contention of the defendant on the other hand is that though properties were purchased jointly, but thereafter an oral partition took place, whereafter, defendant raised construction over his part of suit property with his own funds. PW1, Registry clerk stated that he has brought the summoned record. Registry dated 6.2.2018, Mark—A and Registrar dated 22.6.2018 Mark-B conforms with their record. PW2 plaintiff tendered his tendered his affidavit Ex.DW2/A in which he reiterated the contents of the plaint which need not be repeated here for the sake of brevity. PW3 stated that he knows both the parties to the suit.
He along with other persons tried to settle the matter between Advocates and defendant who had dispute regarding the plot, but settlement could not be effected as defendant refused to abide by which took place through a committee whereafter defendant filed the suit. Plaintiff also filed the suit. In 2018 again proceedings for compromise were undertaken, whereafter, Advocates withdrew the suit. DW1 defendant tendered his affidavit Ex.DW1/A, in which he reiterated the contents of written statement, which need not be repeated here for the sake of brevity. DW2 stated that he is Masson by profession. He stated that he constructed the house, in which defendant is now residing. He constructed the house on the asking of defendant. Defendant used to give payment for material and labour charges.
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