DEVI PRASAD Vs. VISHWANATH PRASAD

JUDGEMENT

(1.) BOTH the above mentioned second appeal have been instituted against the judgment and decree dated 26. 8. 2006 passed by Addl. District Judge/special Judge (B. C. Act), Azamgarh, in Civil appeal No. 290 of 1993. As both the appeals have been filed against the judgment of Civil appeal No. 290 of 1993. Hence both these second appeal are disposed of by a common order. The perusal of the pleadings and judgments of the Court below shows that O. S. No. 76 of 1976 was instituted by Vishwanath Prasad and mangal Prasad for partition of the property of Joint Hindu Family described in the schedule at the foot of the plaint. And it has been alleged in the plaint that there was joint family of the parties and Raghunath Prasad died about 30 years earlier that there was also a joint business of the family. That out of the income of the joint family properties were purchased by the joint family and hence the entire property is joint. That defendants are not agreed for the partition of the property, hence necessitated to file the suit. The defendants contested the suit and filed the written statement. And it has also been alleged that in between the plaintiffs and the heirs of Raghunath Prasad petition took place in the'month of October, 1964 and since 1964 all the family members are residing separately and carrying on the separate business. That after the partition some of the properties were purchased by the defendants by their own income and hence the property is not joint. Both the parties produced the evidence documentary as well as oral in support of their contention before the trial Court and vide judgment and decree dated 26. 5. 1986 the suit was decreed for partition of the property. Being aggrieved from the judgment and decree of the Trial Court Civil Appeal No. 290 of 1993 (Ram Niwas v. Vishwanath prasad) was instituted in the Court of District Judge and this appeal was decided by the Appellate Court vide judgment and decree dated 28. 8. 2006 and the appeal was dismissed with costs. And the appellants being aggrieved from the judgment and decree of the Trial Court and Appellate Court instituted the above mentioned second appeals.

(2.) I have heard learned Counsel for both the parties at length and perused the entire material on record including the judgments of the Courts below and pleadings of the parties. It has mainly been argued by the learned Counsel for the appellants of S. A. No. 998 of 2006 that earlier there had been litigation in between the parties in suit No. 56 of 1976 and it was decided in the suit that the share of each of the sharer in the property is to the extent of 1/7 share. And that the judgment of O. S. No. 56 of 1976 shall be operated as res judicata. And the Courts below committed gross illegality in not accepting the judgment of O. S. No. 56 of 1976 as res judicata and now contrary finding was recorded that the share of the plaintiff is 1/2 in the property in dispute. That partition took place in between the parties in the month of October, 1964 and since 1964 the parties have been living separately. And each of the member of the family had been carrying on separate business and out of the proceeds of their separate business certain members purchased the property and the Courts below erred in holding that the entire property is joint. And that the substantial question of law is involved in this case that the Courts below has not followed the principle of res judicata.

(3.) THE learned Counsel for the appellants of S. A. No. 1002 of 2006 Devi prasad v. Vishwanath Prasad further argued that there had been litigation in between the family members since the year 1971 and the appeal was also filed against the judgment and decree of suit No. 56 of 1971. Under these circumstances after 1971 there was no question of any jointness of the family and there was also no question of joint fund of the joint family in order to purchase the property of scheduled Da. That this property was purchased in the name of devi Prasad by Devi Prasad himself arid this cannot be joint property. He also argued that inclusion of this property in the suit is also barred by section 4 of the Benami Transactions (Prohibition) Act, 1988.