MADANLAL Vs. SURAJBAI

JUDGEMENT

(1.) Being aggrieved by the judgment dated 29-11-2008 passed by XX Additional Sessions Judge, (Fast Track), Indore in Civil Regular Appeal No. 48/07 and 49/07 whereby the judgment dated 27-4-2005 passed by XIV Civil Judge, Class-I, Indore in Civil Suit No. 336-A/03 whereby the suit filed by respondent Nos. 3 and 4 was dismissed, was set aside and decree was passed in favour of respondent Nos. 1 and 2, the present appeal has been filed.

(2.) Short facts of the case are that the respondent Nos. 3 and 4 (Satyanarayan and Champalal) filed a suit on 25-1-1999 against the appellants and respondent Nos. 1 and 2 for declaration, partition and permanent injunction alleging that the respondent Nos. 3 and 4 and the appellant and deceased Ramnarayan are the sons of deceased Kashiram, who has died in the year 1960. It was alleged that respondent Nos. 1 and 2 are legal representatives of deceased Ramnarayan, who happens to be brother of respondent Nos. 3 and 4 and the appellant. In the suit it was alleged that all the four brothers sold their ancestral property to one Ramchandra son of Bhagwan and purchased the property from Kanhaiyalal in the year 1996 in the name of all the four brothers. It was alleged that the property which was purchased was numbered as 59/2 situated at Mod Mandir Gali, Hatod, District Indore. It was alleged that the property which was purchased is the suit property having width of 20 ft. and length of 75 ft. It was alleged that the suit property was the property of undivided joint Hindu family and after purchase of the property all the four brothers were residing in the suit property. It was further alleged that after some time Satyanarayan respondent No. 3 left the village with his family and shifted to Indore with an object to earn his livelihood. It was alleged that respondent No. 4 Champalal lived in the house up to 1996 and thereafter started to live separately. It was alleged that appellant Madanlal is having no male issue and is trying either to give the suit property to his daughter or to sale out and give the money to his daughter. It was further alleged that in the year 1995-96 appellant got his name mutated in his name without any intimation to the respondent Nos. 3 and 4. It was alleged that respondent Nos. 3 and 4 are having one half share in the suit property. It was alleged that since respondent Nos. 1 and 2 are not willing to join as plaintiff, therefore, they have been impleaded as defendants in the suit. It was alleged that earlier also respondent Nos. 3 and 4 filed a suit which was numbered as 10-A/97, but since partition was not claimed in the suit, therefore, the suit was withdrawn by the respondent Nos. 3 and 4 and the suit was dismissed as withdrawn. It was prayed that it be declared that the suit property is the property of undivided joint Hindu family, in which respondent Nos. 3 and 4 are having one half share. It was also prayed that appellant be restrained to alienate the property in any manner whatsoever.

(3.) The suit was contested by the appellant as well as by respondent Nos. 1 and 2. In the written statement filed by respondent Nos. 1 and 2 it was alleged that respondent Nos. 1 and 2 are also having l/4th share in the suit property. In the written statement filed by appellant it was alleged that it was not disputed that the suit property was purchased on 2-6-1961, but it was denied that the suit property was purchased from the nucleus of undivided joint Hindu family property. It was alleged that the suit property was purchased on 2-6-1961, while the property of the undivided joint Hindu family was sold on 4-12-1961. It was alleged that at that time Smt. Gyarasi Bai mother of appellant and respondent Nos. 3 and 4 of Ramnarayan was alive, who has taken the money and ran away. It was alleged that since the suit property was purchased by the funds of the appellant therefore, appellant got his name mutated in the record of municipality in the year 1971. It was alleged that respondents are having no right, title or interest in the suit property. It was alleged that the suit filed by respondent Nos. 3 and 4 is barred by time. It was prayed that the suit filed by respondent Nos. 3 and 4 be dismissed. Respondent Nos. 1 and 2 also filed counter-claim separately, wherein l/4th share was claimed.