1. The defendant-Counterclaim plaintiff's counterclaim shall be dismissed.

2. The real estate listed in the separate sheet shall be divided.

1. Basic facts

A. From October 16, 1980, Nonparty C and D shared each 1/2 shares of the land listed in the separate sheet (hereinafter “instant land”) from October 16, 1980. The Plaintiff purchased the above 1/2 shares from the above C, and completed the registration of ownership transfer in its name on April 11, 1983.

B. On April 11, 1983, the Plaintiff completed the registration of ownership transfer with respect to the tobacco and colon's house built over part of the instant land and its neighboring E and F land, and colon's house (hereinafter "the instant house"), and thereafter, used the instant house until now.

C. The compulsory auction procedure for D's 1/2 shares among the land in this case was commenced, and the defendant has been awarded a bid for D's shares in the auction procedure and paid in full the proceeds on January 15, 2008, and the same year.

2. 11. He completed the registration of ownership transfer in his name.

The Plaintiff, among the instant land, occupies a portion of 65 square meters in the ship, which connects each point of the attached drawings 1, 12, 11, 10, 9, 8, and 1 with the site, etc. of the instant housing.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence Nos. 1 and 2 (including branch numbers), the purport of the whole pleadings

2. Determination on the legitimacy of a counterclaim

A. As a form of a lawsuit seeking partition of an article jointly owned, the method of subdivision stated in the purport of the claim is not binding on the court. Thus, it cannot be viewed as an independent claim, and it is merely an attack and defense. The Defendant’s filing of a lawsuit seeking partition against the same article jointly owned as a counterclaim with only the method of subdivision different from the Plaintiff’s assertion cannot be deemed an independent claim, which is a requisite for filing a counterclaim

B. As the Plaintiff’s principal lawsuit, the Plaintiff filed a partition of co-owned property as to the instant land by means of selling the instant land with the Plaintiff 65 square meters and the Defendant 61 square meters, and the Defendant, as a counterclaim, filed a claim for partition of co-owned property as to the instant land by means of auction.