C. LAMBERT Vs. A. LAMBERT

JUDGEMENT

(1.) This is defendant's second appeal against the judgment and decree dated 11.12.1975 passed by the IXth Additional District and Sessions Judge, Allahabad in Civil Appeal No. 189 of 1973 modifying the decree of the trial court dated 31.5.1972 passed by the Munsif West, Allahabad in Original Suit No. 571/1966.

(2.) Heard Shri Abhishek, learned counsel for the appellant and Shri K.M. Asthana, learned counsel for the respondent.

(3.) The plaintiff instituted a partition suit praying for a decree of partition of the suit property. The suit was instituted by the plaintiff, Able Lambert alleging that he and defendant Nos.1 to 4 belong to same family, being sons of Charle Lambert and Smt. Rebeka Lambert; that Smt. Rebeka Lambert died in 1963 and Shri Hamilton, one of her sons, has not been heard for more than seven years and is, therefore, presumed to be dead; that the suit property, being plot Nos.101/1 and 101/3, area 5 biswa each, situated in Village Muirabad, Pargana Chail, Allahabad and three other plot Nos.20, 32 and 34, constituted joint family property of the parties; that plaintiff filed a suit for partition of the aforesaid five plots, which was contested by defendant No. 2, Crighton Lambert and it was decreed by the revenue court; that in appeal as a result of compromise, plot Nos.101/1 and 101/3 were admitted by the parties to be abadi and were therefore, left out of partition. That decree in respect of remaining plots was passed by the appellate revenue court; that in view of death of Smt. Rebeka and presumed death of Shri Hamilton, the share of plaintiff in the suit property has risen to ? ..?th from 1/7th; the plaintiff is in joint possession of the property along with defendant Nos.1 to 4; that property in suit being abadi was beyond jurisdiction of revenue court and consequently, plaintiff served a notice dated 15.2.1966 on the defendant No. 2 requesting him to partition the share of the plaintiff, but he declined, hence, the suit was instituted for partition of the ? ..?th share of the plaintiff; that defendant No. 5 is a proforma defendant being the land holder.