HEERALAL Vs. KALYANMAL

JUDGEMENT

(1.) Leave granted.

(2.) Heard learned counsel for the appellant as well as learned advocate for respondent Nos. 1 and 2, who are original defendant Nos. 1 and 2 and are the only contesting parties in this appeal. The appeal was taken up for final disposal forthwith by their consent.

(3.) Appellant-plaintiff had filed a civil suit for partition of 10 items of immovable properties mentioned in Schedule-A of the plaint and also for partition of other properties listed in Schedule-B of the plaint. The suit was filed in 1993 in the Court of District Judge, Bundi for partition of the suit properties mentioned in diverse schedules annexed to the plaint. The contesting respondent Nos. 1 and 2, who are defendant Nos. 1 and 2 in the suit, being real brothers of the plaintiff filed a joint written statement on 1st October, 1993 in the trial Court. In the written statement a definite stand was taken by the contesting defendants that out of the listed properties in Schedule-A only three properties at Items 4, 9 and 10 were exclusively belonging to the contesting defendants and were not joint family properties of the plaintiff and defendant Nos. 1 and 2. Meaning thereby that the other seven properties listed in Schedule-A were admitted to be joint family properties. Not only that but in para 11 of the written statement it was submitted that 'the plaintiff is only entitled for partition regarding the properties of Schedule-A except Items 4, 9 and 10 and all the properties mentioned in Schedule-B.' They also stated in the said para 11 of the written statement that so far as admitted properties were concerned, the plaintiff was entitled to 1/3rd share and remaining 2/3rd share belonged to defendants Nos. 1 and 2. It appears that thereafter the suit remained pending for trial for number of years. On the basis of the aforesaid stand taken by the contesting parties in the written statement, issues were framed by the trial Court. Issue No. 2, amongst others, read as under: