AMRITLAL AGRAWAL Vs. VISHNUKANT

JUDGEMENT

(1.) The instant First Appeal has been filed by the appellant/ plaintiff under Sec. 96 of the Code of Civil Procedure,1908 challenging the judgment and decree dtd. 10/4/2008 passed by First Additional District Judge, Bilaspur in Civil Suit No. 52-A/2005 by which the suit filed by the plaintiff has been dismissed.

(2.) Brief facts necessary for disposal of this appeal are that plaintiff Amritlal and defendant No.1 Vishnukant are the sons of late Vyashnarayan. Defendant No.2 Shankaralal was also son of Vyashnarayan, subsequently, he was adopted by Ramkrishna, brother of Vyashnarayan. Defendant No. 4 Rajkumari Bai was the wife of defendant No.1. The property described in Schedule A, B and C is the suit property. The property described in Schedule-B is situated at village Baloda, Tahsil Janjgir Champa, District Janjgir Champa, measuring 14 acres of lands belonging to defendant's mother Smt. Rampyari Bai. After her death property described in Schedule-B has been inherited by plaintiff and defendant Vishnukant and they are entitled for 1/2 of the shares in the property. It has been contended that the property described in Schedule-C, land bearing khasra No. 67/1/31/B area 25 decimal, name of defendant No.1 has been recorded in the revenue record and land bearing khasra No. 67/2/28/2 area 25 dismissal was recorded in the name of defendant No.4. These two lands measuring 50 dismissal have been purchased by mother of plaintiff late Rampyari Bai from her own sources. It has been contended that after death of Rampyari Bai, the plaintiff and defendant No.1 are entitled to get 1/2 of the shares in the suit house and the plot. It has been further contended that Rajkumar (defendant No. 4) has no right over the suit property as the plaintiff mother Rampyari Bai has purchased the property from her own sources. There was dispute between the plaintiff and defendant No.1 and the plaintiff has filed the Civil Suit No. 9-A/97 which was decided by 6th Additional District Judge, Bilaspur in favour of plaintiff on 11/3/1998. It has also been contended that this judgment and decree was assailed by the defendant before the High Court but the plaintiff has not received any notice about filing of the suit, therefore, it is presumed that no appeal has been filed. After death of Rampyari, the plaintiff has made an attempt for partition of the suit property but in vain which has necessitated the plaintiff to file suit for partition, declaration and injunction with regard to suit property mentioned in schedule A,B and C. It has also been prayed that though defendant No. 2 Shankarlal is adopted son of Ramkrishna, still the Court granted the share after decreeing the suit for partition in favour of defendant No.2 also then he has no objection with regard to grant of share to defendant No.2.

(3.) The defendant No.1 and defendant No. 4 have filed the joint written statement admitting the relationship between the parties but denying the allegation made in the plaint. It has been contended that as per the partition taken place between the plaintiff, defendant No.1 and mother Rampyari Bai on 31/10/1983, the property described in Schedule-A and B of the plaint house and land measuring 14 acres has been given to Ram Kumar Bai, as such she was sole owner of the property. It has been further contended that Rampyari Bai has executed a Will on 15/12/1983 in her lifetime in favour of defendant No.1 and as per Will the defendant No.1 has taken possession, title over the suit property. It has also been contended that Civil Suit No. 9-A97 has filed on 30/4/1984 before the Court of 6th Additional District Judge, Bilaspur which was decided on 11/9/1998. The plaintiff himself admitted about the execution of Will by Rampyari Bai on 15/12/1983 still he has claimed 1/2 of the share which is not correct. It has been further contended that the property has been given to the Ram Kumar Bai as per family partition but Ram Kumar Bai has executed the Will in favour of defendant No.1 and the plaintiff has no right or title over the suit property. It has been further reiterated that the plaintiff is well aware of the execution of the Will but he has never challenged the execution of the Will. It has also been contended that the suit is time and the defendants would further submit that the suit filed by the plaintiff be dismissed with cost.