NARBADA PRASAD KATELIHA Vs. SHAKUNTALA SWARNKAR

JUDGEMENT

(1.) By this appeal under Section 96 of the Code of Civil Procedure, 1908, the appellant has challenged legality & propriety of judgment & decree dated 29-9-1993 passed by the 2nd Additional District Judge to the Court of District Judge, Bilaspur in Civil Suit No. 10A/92, whereby learned Additional District Judge has decreed the suit filed on behalf of respondents No. 1 (a) to (h) herein against the appellant herein/defendant No. 1, Narayan Prasad (since deceased) & Shanti Bai for partition and separate possession. As per pleadings of the parties, Sarju Prasad Kateliha was father of Bhagwandeen Kateliha (plaintiff), Narbada Prasad Kateliha (defendant No. 1), Narayan Prasad Kateliha (defendant No. 2) & Shanti Bai (defendant No. 3). The appellant herein & respondent No. 3 herein Shanti Bai are son & daughter of Sarju Prasad through second wife Sundar Bai, respectively. One house situate at Sadar Bazaar Ward, Bilaspur was owned by Sarju Prasad, his two brothers, mother and father. Suit property i.e. the house was given in registered partition dated 28-9-48 to Sarju Prasad. Sarju Prasad died in the state of joint-ness over the property and after death of Sarju Prasad, the aforesaid suit property held jointly was succeeded by his wife, three sons and one daughter. The appellant herein was residing separately. Shanti Bai was residing in her in-laws' house and other members were residing together. Suit was filed by the plaintiff for partition and separate possession. On the date of filing of suit, market value of the suit property was Rs. 85,000/-.

(2.) By filing written statement, the appellant herein has admitted joint ownership over the suit property and has specifically alleged that Sarju Prasad-father of the appellant herein, who was competent to effect partition has effected partition in the month of August, 1966. Suit property is smaller in size and partition by metes and bounds was not possible. Therefore, after assessing market value of suit property as Rs. 40,000/-, 1/5th share was given to the appellant herein and for payment of Rs. 8,000/- to the appellant herein as his share in the property, Sarju Prasad has deposited Rs. 10,000/- before Kamta Prasad with a view that he will pay Rs. 5,000/- to the appellant & Rs. 5,000/- to another son Narayan Prasad, thereafter, Sarju Prasad will pay remaining amount of Rs. 3,000/- to each in two installments. However, Kamta Prasad has spent Rs. 10,000/- and has not paid any money to the appellant herein. Sarju Prasad has informed same thing to the appellant herein, Narayan Prasad & Kamta Prasad by issuance of notice dated 25-8-67. After effecting partition, status of joint-ness over the property came to an end. Suit filed after lapse of 12 years was time barred. Sarju Prasad has executed will in favour of his wife i.e. mother of the appellant, and mother of the appellant has executed will in favour of defendant No. 1 Narbada Prasad. On the basis of partition will, Narbada Prasad alone is owner of the suit property, plaintiff Bhagwandeen Kateliha is not entitled for any share upon the suit property and the suit filed on behalf of Bhagwandeen Kateliha was time barred.

(3.) By filing separate written statement, defendant No. 2 Narayan Prasad has also admitted the allegations made in the plaint and has claimed partition of the suit property.