JUDGMENT 1. - This appeal by the plaintiffs is directed against the judgment and decree of the Additional District Judge, Churu, dated April 30, 1977, dismissing the plaintiffs suit for partition on the ground of being not maintainable. 2. The suit for partition was filed by Ramlal and Mohan Singh against the defendants, namely, Dhannaram, Parmeshwarlal and Mst. Jheerna in respect of a house situated at Churu and some movables. In the plaint, it was alleged that though a formal partition of the properties had not taken place but by convenience, the parties were living in separate portions. In the Eastern portion, the plaintiffs were living while the Western was occupied by the defendant Dhannaram and his son Parmeshwarlal. The suit for partition was contested by the defendants, who alleged that the properties were joint and no partition had taken place and there were additional properties, which also required to be partitioned. 3. The Additional District Judge on the basis of the admission made by the plaintiffs in his statement before the Court held that the suit was not maintainable as the plaintiff himself admitted that the properties had already been partitioned. On this finding, the learned Additional District Judge dismissed the plaintiffs suit. Aggrieved by this judgment and decree, the plaintiffs have filed the present appeal in this Court. 4. Shri Balia, learned Counsel for the appellants, has contended that the admission made by the plaintiff that the properties had been partitioned even if taken as an admission of the fact is not conclusive inasmuch as the defendants have not acted upon it. He submits that the Additional District Judge without recording a definite finding this way or the other that a partition had in fact taken, place ought not to have dismissed the plaintiffs suit. 5. I have considered the contentions raised by the counsel for the plaintiffs. I agree with him that the learned Additional District Judge should not have non-suited the plaintiffs only on the basis of the admission made by him in his statement before the Court. It may be pointed out that this admission was not accepted by the defendants. His position rather was that the properties were joint and they were in joint possession of the same and no partition had taken place earlier. The learned Additional District Judge has also not recorded a categorical finding that the property had already been partitioned. It may be pointed out that this admission was not accepted by the defendants. His position rather was that the properties were joint and they were in joint possession of the same and no partition had taken place earlier. The learned Additional District Judge has also not recorded a categorical finding that the property had already been partitioned. The controversy between the parties is not resolved and still subsists. In these circumstances, in my view, the Trial Court should not have thrown the suit of the plaintiffs on the basis of the admissions made by the plaintiff, which was not accepted by the defendants. The case deserves to be proceeded with and decided on merits. 6. Accordingly, the appeal is allowed. The judgment and decree passed by the Additional District Judge, Churu, are set aside and the case is remitted to the Trial Court for deciding the case on merits. It would be open to the Trial Court to take the admission into consideration in deciding the merits of the case. Parties shall bear their own costs of this appeal.Appeal dismissed. *******