BHAGWANI DEVI Vs. WADHURAM

JUDGEMENT

(1.) This appeal has been directed against the Judgment and decree dated 20-11-1997 passed in Civil Suit No. 1-A/97 (Old Civil Suit No. 84-A/91 by the learned IIIrd Additional Judge to the Court of Dist. Judge, Raipur, whereby the suit filed by the appellants for partition of the suit property, lands and house described in Schedule-1 annexed with the plaint has been dismissed.

(2.) Facts material for disposal of this appeal, in brief compass, are that Sumarmal Menghani and Wadhuram are sons of Pesumal Menghani. Both the sons were the members of Hindu Undivided Family, after the death of Pesumal Menghani, they 0became exclusive owners of entire movable and immovable property left by Pesumal Menghani. In the year 1950 Sumarmal Menghani died in Pakistan and Wadhuram became Karta of Hindu Undivided Family who started managing and enjoying the affairs of joint properties. Out of the income of Hindu Undivided Family, Wadhuram raised funds and sent the same to his son Chunilal who was at Jabalpur and Raipur for purchasing the property. The suit house and lands were purchased out of the income of properties belonging to Hindu Undivided Family, therefore, the suit property also belonged to the family of appellants and respondents No. 1 to 4 who were the members of Hindu Undivided Family. In Urban Ceiling Case No. 359-A/90-C (1) 76-77, respondent No. 1 Wadhuram deliberately took the stand of Hindu Undivided Family consisting of hims if and his three sons, and therefore, only 8000 sq. m. of land was realized and remaining land was declared surplus and acquired by respondent No. 5/State. Respondents No. 1 to 4 out of that land sold 20000 sq. ft. to Shri A. K. S. Minhas whose heirs are respondents No. 6 to 9. Appellants claiming partition of the suit property served legal notice and served notice on the respondents for realization of surplus land under Section 80 of the C.P.C., Prior to it, respondents No. 1,2 and 4 in a community meeting had admitted in writing entitlement of appellants for half of the share. As respondents did not comply with the notice served on them, the appellants instituted a suit for partition and separate possession.

(3.) Respondent No. 3 was proceeded ex parte. Respondent No. 5 did not file any written statement. Respondents No. 1, 2 and 4 refuted the claim of the appellants and categorically claimed the property to be self-acquired property of respondents No. 1 to