DAYABEN MANSHANKERBHAI JANI Vs. LABHSHANKER NATVARLAL BHATT

JUDGEMENT

(1.) BY this appeal under section 100 of the Code of Civil Procedure, 1908 (the Code), the appellants (original defendants No.3 to 5) have challenged the judgement and decree dated 29.11.2008 passed by the learned Presiding Officer, Fast Track Court, Morbi, in Regular Civil Appeal No.10 of 2006 whereby he has confirmed the judgment and decree dated 15.09.2004 passed by the learned Civil Judge (S.D.), Morbi in Regular Civil Suit No.66 of 2003 and dismissed the appeal preferred by the appellants herein.

(2.) THE case of the respondent No.3 Shri Durlabhji Natvarlal Bhatt (original plaintiff) as stated in the plaint is that the defendants No.1 and 2 are his brothers and defendants No.3, 4 and 5 are his sisters and that their deceased father Natvarlal Bhatt had purchased immovable property bearing old survey No.769 and 767 (new survey No.1120), admeasuring Acres 4 32 Gunthas, situated at Village Vajepur, Taluka Morbi, from one Mehta Dalichand Vanechand by a sale deed dated 16.1.1967 bearing registration No.108 and had acquired a house, admeasuring 2580.01 square feet situated at Village Lilapar, by a Lekh being Morbi D.L.B.R. No.24 dated 13.1.1949, (hereinafter referred to as "the suit properties"). That his father Natwarlal Bhaishankar Bhatt and his mother Shivkunvarben Natwarlal Bhatt had expired on 11.8.1979 during the floods at Morbi. It was the case of the plaintiff that the aforesaid suit properties had never been partitioned between the members of the joint family and that the plaintiff had a right, title and interest in one -sixth share of the suit properties. That for the purpose of making the agricultural land fit for cultivation, the plaintiff had expended a sum of Rs.35,670/ - towards leveling the land and putting fertilizers during the period 7.10.2002 for which purpose, he had also used a JCB and a tractor and had made the land cultivable. The entire amount had been paid by the plaintiff and by dividing the cost into three parts, the defendant No.2 Pradyumanlal Natvarlal Bhatt had paid Rs.11,666/ - being his one -third share. However, the defendant No.1 Labhshankar Natvarlal Bhatt upon being called upon to pay his one -third share of Rs.11,666/ -, had categorically refused to pay the same and had also stated that no share in the land would be given to him. The plaintiff, therefore, instituted a suit being Special Civil Suit No.66 of 2003 in the Court of the learned Civil Judge (S.D.), Morbi, inter alia, seeking a declaration that the plaintiff is entitled to one -sixth share in the suit properties.

(3.) IN response to the summons issued by the court, the defendants No.1 and 2 filed written statement at Exhibit -19 wherein they accepted that the suit properties were purchased by their father as stated in the plaint and that by virtue of mutation entry No.1751 dated 2.10.1979 the same had been entered in the joint name of all the parties. It was also denied that at present the suit properties stand in the joint names of the plaintiff and all the defendants. It was further the case of the defendants No.1 and 2 that the plaintiff had not been able to specify the exact extent of his share in the suit properties. It was also admitted that the suit properties were joint properties, however, it was denied that the plaintiff had expended Rs.35,670/ - for making the same cultivable. That the claim of the plaintiff for 1/6th share was incorrect and made without verifying as to whose names were running in the revenue record. The appellants (defendants No.3, 4 and 5) had submitted their written statement at Exhibit -23 wherein they have supported the case of the plaintiff and have stated that it was true that the suit properties were of the ownership of their father Shri Natvarlal Bhaishanker Bhatt. That the father of the plaintiff and the defendants expired on 11.8.1979 after which, both the suit properties were of the joint ownership of the plaintiff and the defendants. That the suit properties were never partitioned and that in both the properties, the plaintiff had one -sixth share and similarly, the defendants No.3, 4 and 5 each, had one -sixth share in the suit properties. It was stated that the defendants No.3, 4 and 5 have no objection if the plaintiff is given his one -sixth share in the suit properties and that the defendants No.3, 4 and 5 should also be given their one -sixth share each, in the suit properties. The trial court framed the following issues :