SUCHIT AND OTHERS Vs. GOBARI AND OTHERS

JUDGEMENT

(1.) For a proper appreciation of the facts of the case, the following pedigree would be essential:-

(2.) After the death of Jagesar, the property devolved upon his three sons viz. Baijnath, Kedar and Kishore and each of them got 1/3rd of the property of their father Jagesar. Thereafter, one son of Jagesar, namely, Kedar died on 10.08.1995 and, therefore, his three sons, namely, Gobari, Nandlal and Sukhlal inherited the property of Kedar.

(3.) Thereafter, when Kishore, another son of Jagesar, died on 12.2.1996, it is the case of the plaintiffs, that as per Sec. 171 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, (hereinafter referred to as 'the Act') 1/3rd share of Kishore, the son of Jagesar, devolved upon his surviving brother Baijnath. Therefore, when the plaintiffs, the sons of Baijnath, came to know about the sale deed which was being executed by the defendant first set, they filed the suit being Suit No. 718 of 2008 and took the case that when the defendants first set were only owners of 1/3rd of the share of Jagesar then they could not sell the properties which exeeded the 1/3rd share of Jagesar and, therefore, they took a case in the plaint that the properties in excess of 1/3rd share of Jagesar, which, the defendants first set was selling, could not be sold and the sale deed to that extent be cancelled. A further prayer for permanent injunction restraining the defendants from interfering with the petitioners' possession over the share which came in their lot was made. In their written statement the defendants took up a case that the plaintiffs and the defendants first set were each owners of half of the property of Jagesar as Kishore during his life time had partitioned his property and had divided amongst his two brothers Baijnath and Kedar. They had also taken up a case that the plaintiffs and the defendants (first set) were in possession over their shares which they had got through Jagesar and also over the share which was distributed amongst the plaintiffs and the defendants (first set) by Kishore. Further case, which was taken, was the other villages also where the plaintiffs and defendants (first set) had properties, they were in possession. The plaintiffs were in possession over half of the properties of Jagesar and the defendants (first set) were in possession over the remaining half.