VIJAY KUMAR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This second appeal preferred by the appellants/defendants was admitted for hearing on 03/04/2019 by formulating the following substantial question of law :-

(2.) Plaintiffs No. 1 and 2 as well as defendants No. 1 and 2 are the sons of Late Shri Lakhanlal Kesharwani and defendant No. 3 (now deceased) was the widow of Late Shri Lakhanlal Kesharwani. The two plaintiffs filed a suit against their two brothers and mother stating inter alia that the suit property situated at Village Khaprikala, Distt. Bilaspur bearing Khasra Nos. 9/5, 9/9, 72/3, 273 admeasuring 3.86 acres and Khasra No. 72/5 admeasuring 3.25 acres is the joint family property of plaintiffs as well as defendants No. 1 to 3 and each one of them is entitled to get 1/5th share in the said suit property and since the name of defendant No. 1 is recorded as the tilte-holder of suit property bearing Khasra No. 72/5 area 3.25 acres, therefore, decree for declaration be granted that all five of them are entitled to get 1/5th share in the suit property.

(3.) Resisting the suit, defendants No. 1 to 3 filed their written statement and admitted the claim of the plaintiffs that suit property bearing Khasra Nos. 9/5, 9/9, 72/3, 273 admeasuring 3.86 acres is the joint family property of plaintiffs and defendants No. 1 to 3, however, they took a definite stand that suit property bearing Khasra No. 72/5 admeasuring 3.25 acres fell in the share of his father's brother namely Jairam Prasad during partition and since he was issueless, he gave it to defendant No. 1, therefore, suit property bearing Khasra No. 72/5 area 3.25 acres is the exclusive property of defendant No. 1 on which plaintiffs have no right, title or interest. Moreover, a plea was also taken by defendants No. 1 to 3 with regard to the suit being bad for non-joinder of necessary party by pleading that Rambharos, who was the brother of Lakhanlal Kesharwani, his sons and daughters are necessary and proper party in the suit but they have not been impleaded, as such, the instant suit is liable to be dismissed for non-joinder of necessary party.