SHIVNARAYAN GUPTA Vs. VYASNARAYAN GUPTA

JUDGEMENT

(1.) Challenge to this Appeal preferred by the Plaintiff under Section 96 of the Code of Civil Procedure, 1908 (for short 'the Code of 1908') is the judgment and decree dated 31.08.2006 passed in Civil Suit No.44-A/2004 whereby the learned trial Court has dismissed his claim for partition and separate possession. The parties to this Appeal shall be referred hereinafter as per their description before the court below.

(2.) The facts which are essential to be stated for adjudication of this Appeal are that a suit for partition and separate possession has been made by the Plaintiff Shivnarayan Gupta submitting inter alia that the properties described in Plaint Schedule-'A' situated at village Aarang and Baihar of District Raipur and village Sarekel of District Mahasamund are the Joint Hindu Family properties and they were being managed by his father Manrakhan Lal Gupta. According to the Plaintiff, his father, in the year 1982-83, entrusted and recorded lands in the name of himself, his wife Anusuiya Bai, his sons and their wives and also gave houses to them for better management of the family and it was not intended to be a partition. In pursuance of the said family arrangement, the properties described in Plaint Schedule-'B' were recorded in revenue papers in father's name and upon his sad demise on 07.11.1999, the entire ancestral properties were devolved upon him and his legal heirs.

(3.) Further case of the Plaintiff is that his brother Kamalnarayan Gupta, Defendant No.3, with whom his father used to live, has created a forged and fabricated Will, said to have been executed by father in his favour on 24.12.1998 and succeeded thereafter to get the mutation order from Revenue Authorities and, thus, trying to set up his individual interest thereon. The Plaintiff has, therefore, been constrained to file the suit in the instant nature claiming 1/5th share over the properties described in Plaint Schedule-'A' and/or claiming alternatively 1/6th share over the Plaint Schedule-'B' properties, which is recorded in the name of his father.