Ashok Bhushan JUDGMENT
Ashok Bhushan, J.
1. 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.
2. Brief facts of the case which are necessary to be noted for deciding this appeal are:
We shall refer the parties as described in the plaint. Plaintiff and Respondent are real brothers being sons of late Devi Dutt Ji Verma. Plaintiff's case is that his father Devi Dutt Verma on 25.10.1992 decided to divide his self-acquired movable and immovable properties between Plaintiff and Defendant. The late father, however, did not execute any settlement deed. 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 self-acquired properties. The memorandum of settlement was signed by mother of the parties as well two sisters had signed as witnesses. According to memorandum of settlement both residential house as well as shop in the Aguna Bazar were distributed as decided by their late father.
3. A Civil Suit No. 5 of 2010 was filed by the Plaintiff praying for partition of the residential house as well as the shop. In the suit an application Under Order VII Rule 11 of the Code of Civil Procedure 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. Southern portion of the house came in the share of the Plaintiff and northern part came in the share of the Defendant. In confirmation 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. It was pleaded by the Defendant, in view of the aforesaid, that there was no cause of action for the Plaintiff to file a partition suit. Defendant prayed that suit of the Plaintiff is liable to be dismissed.
4. The trial court vide its order dated 19.01.2011 allowed the application filed by the Defendant Under Order VII Rule 11 Code of Civil Procedure and dismissed the suit for want of cause of action in favour of the Plaintiff. The civil court accepted the case of the Defendant that the parties which were in joint family have been divided, there being nothing joint between the parties, there is no cause of action for the Plaintiff for filing the suit for partition. The relief for permanent injunction was also held to be related to the partition.
5. 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 prayed for decree of possession against the Defendant as well as decree of permanent injunction. Plaintiff also sought for mesne profit and expenses.
6. In the suit, Plaintiff has filed the document dated 09.09.1994 evidencing fami........