RAM MANOHAR PATEL Vs. RAM PRASAD PATEL

JUDGEMENT

(1.) This appeal is directed by the appellant/defendant No. 2 under section 100 of Civil Procedure Code being aggrieved by the judgment dated 3-7-2007 passed by 9th Additional District Judge, Jabalpur in Civil Regular Appeal No. 11-A/07, affirming the judgment and decree dated 24-2-2006 passed by Civil Judge Class-II Patan in Civil Original Suit No. 36-A/04 decreeing the suit of respondent No. 1 filed for perpetual injunction with respect of disputed house described in the plaint.

(2.) The facts necessary to consider the question of admission in short are that respondent No. 1/plaintiff herein filed the suit for perpetual injunction against the appellant and respondents No. 2, 3 with respect of a house property situated at village Riyana described in the plaint and also marked in red colour in the annexed map with the plaint. According to it he and respondent No. 2 being sons of Ghanshyam Prasad Patel are the real brothers while the appellant and respondent No. 3 are the sons of respondent No. 2. In the life time of Ghanshyam Patel in his presence on 19-7-1973 the family property was partitioned between him, respondent No. 2 and said Ghanshyam Patel, in which the aforesaid disputed house was given to respondent No. 1 in his share and since then he is coming in possession of the same. The share of the house given to the respondent No. 2 and Ghanshyam Patel are shown in the green and blue colour in the aforesaid annexed map. In such premises, the appellant and respondents No. 2, 3 did not have any right in the disputed house. Said Ghanshyam Patel died on 29-5-2004. Since then the appellant and respondents No. 2, 3 are trying to interfere in his possession of aforesaid house, for which a report is also lodged with the police Patan. With these pleadings the aforesaid suit is filed.

(3.) In the written statement of the appellant by denying the averments of the plaint, it is stated that the description of the house received by the respondent No. 1 in the alleged partition is not specifically pleaded in the plaint. On what basis the measurement of the property is shown in the map, the same is not described with particulars. The annexed map is also disputed. Since 1973, the respondent No. 1 is residing at Gotegaon in his in-laws family where he also constructed his own house. In such premises he could not be deemed to be the resident of village Riyana. In additional pleadings it is stated that the possession of the alleged house was never taken by the respondent No. 1. Just after two months from the alleged partition of 1973, the respondent No. 1 was constructing his house at Gotegaon for which he being in need of the money has sold his share of the house with possession to father Ghanshyam Prasad Patel in consideration of Rs. 7,000/-, since then the respondent No. 1 was never remained in possession of the same. As such after the partition since 1973 onward for 20 years Ghanshyam Prasad Patel was remained in possession of the house and thereby he perfected his title on it by adverse possession and after his death the same is coming in possession of the appellant and respondent No. 2. During the aforesaid period no proceedings for taking over the possession was initiated by the respondent No. 1. The suit is filed on insufficient Court fee on improper valuation. The same is also filed barred by limitation. With these pleadings the prayer for dismissal of the suit is made.