Dear respected and learned members of this forum following are the facts and query -
Facts of the case -
House was built by my father within the red line(lal dora) of our ancestral village. Lal dora means within red line no revenue or land ownership records exist with government.
After my father's death, the house was divided into three equal parts between myself, my brother and our mother in 1986, via written private partition agreement on court stamp paper, with signatures of respectable village elders as witnesses and three of us took possession of respective partitions.
In the same written private partition agreement, it was also agreed that after the death of mother, her portion will also be equally divided between her two sons. Accordingly after her death in 2008, her portion was also equally divided, possessed between myself and my brother.
In 2015, I purchased an adjacent plot of land from third party to extend my partitioned portion of house. On coming to know the existent high prevailing price of land at which I purchased, under influence of greed, my brother started demanding the re-partition of entire original house built by my father. He openly said that he does not recognize the written private partition agreement on court stamp paper done in 1986. In other words he wanted to dispossess the partitioned portion under my possession since 1986 and do re-partition.
Evidence of my ownership of partitioned portion -
Written private partition agreement on court stamp paper done in 1986, Electricity bill, voter id card, LPG gas connection, working bank account since 1985.
Evidence that my brother does not live in the village, has abandoned his portion and living in nearby city -
Other than written private partition agreement on court stamp paper done in 1986, he has no proof of address for his village. Got electricity connection at his portion disconnected after death of his mother. Has voter ids of his entire family including himself at city address. Also has LPG gas connection and land line telephone connection at his city address.
I approached an advocate, he filed application under order 39 rule 1 and 2 read with Section 151 CPC for declaration and permanent injunction against my brother. Court immediately granted temporary stay order till disposal of the case and my brother was asked to give a written reply. Brother gave written statement and reply to application under order 39 rule 1 and 2 CPC. Instead of giving true and honest reply, he filed counter claim for fictitious damages, fictitious claim that property was never divided and partition suit needs to be filed by me and other baseless allegations.
My advocate has decided not to file reply to baseless counter claims, stating let my brother first prove his ownership/ possession over part of house possessed by me. Giving reply to his bogus counter claims will cause confusion, take the matters to different direction and original purpose will be lost. This reasoning appears reasonable. But now court has given orders three times like - "Reply to application for counter claim not filed. On request, case is adjourned to xx.xx.2017 for filing reply of said application. Subject to last opportunity."
My question -
Since court is giving such orders, will not giving written reply be taken as negative inference by court and take favorable inclination towards opposite party? Or my advocate appears to be doing fine and let my brother prove his ownership/ possession over my partition?
