SATYA GUPTA Vs. OM PRAKASH DECD

JUDGEMENT

(1.) This is defendants' second appeal against the judgment and decree dated 27.2.1998 passed by the Additional District Judge, Ghaziabad whereby the judgment and decree dated 5.3.1990 passed by the Additional Civil Judge. Ghaziabad, dismissing the suit of the plaintiffs-respondents was reversed by the lower appellate court and the suit of the plaintiffs-respondent No. 1 (now represented by heirs and legal representatives, respondent Nos. 1/1 and 1/2) and respondent No. 2 was decreed by the lower appellate court.

(2.) Om Prakash and Salekh Chand filed Suit No. 699 of 1984 against appellant Smt. Satya Gupta and one Brijesh Kumar, respondent No. 3 in this appeal. Shiv Om Banshal and Mahendra Kumar Banshal appellant Nos. 2 and 3 were added as defendant Nos. 3 and 4. The plaint allegations were that house No. 104 (old number) with its new Nos. 175 and 176 described in the plaint belonged to one Paras Ram who had four sons, namely, Jagannath, Dina Nath, Anand Swaroop and Battu Mal. The pedigree is given as follows : Pedigree Paras Ram Jagannath Dina Nath Anand Swaroop Battu Mal (died issuless) Chandra Bhan Surendra Kumar (adopted son) (son) Smt. Shanti Devi (widow) Chawati Devi Smt. Satya Gupta Brijesh Kumar (widow) (daughter of (adopted son) defendant No.1) defendant No. Dina Nath died issueless but diring his life time he had sold his 1/4th share to Battu Mal. Surendra Kumar and his mother (widow of Anand Swaroop) had sold their 1/4th share to Smt. Satya Gupta by registered sale deed. Brijesh Kumar defendant No. 2 is adopted son of Battu Mal. On the death of Jagannath, his son Chandra Bhan succeeded to share of Jagannath in the suit property. On the death of Chandra Bhan, his widow Smt. Shantl Devi succeeded to the 1/4th share of Chandra Bhan in the suit property. She executed a sale deed dated 26.7.1979 of her share in the suit property in favour of the plaintiffs. At the time of execution of the sale deed. Shanti Devi was in possession of her share in the suit property. Thus, the plaintiffs are co-sharers of 1/4th share in the suit property whereas defendant Nos. 1 and 2 are co-sharers of 3/8th share each in the suit property. It is alleged that Jagannath had no issue. He had adopted Chandra Bhan who happens to be the son of his real sister and the sister's husband name was also Jagannath. Ceremony adoption was performed in accordance with the customs of the community prevalent among the parties in the month of Falgun Sambat, 1985. There was a custom in the community of the co-sharers to adopt sister's son and Smt. Shanti Devi was wife of Chandra Bhan. The plaintiffs wanted to get the suit property partitioned and have their separate 1/4th share in the suit property. On the above pleadings the relief claimed was that the suit property be partitioned by metes and bounds and the plaintiffs be given possession on the separate share allotted to them.

(3.) Defendant No. 2 did not file any written statement and suit against him proceeded ex-parte.