JHALKANLAL Vs. NAND KISHORE LOHIYA

JUDGEMENT

(1.) THIS is plaintiffs second appeal under Section 100, CPC. The following substantial question of law was formulated by this Court by order dated 2-9-1998 at the admission of this appeal:-

(2.) THE facts relevant for the decision of the question referred to above are that Ghasiram had four sons Kudau, Manaklal, plaintiff Jhalkanlal and defendant No. 1 Nand Kishore. Kudau had died during the life time of his father. The father died in the year 1939. He left behind considerable landed property. He was doing money lending business. Manaklal separated from the joint Hindu family in the year 1951 and after a few years he died. Nand Kishore, Jhalkanlal and Ranibabu widow of Kudau filed Civil Suit No. 2-A of 1972 against the heirs of Manaklal for declaration that the property detailed in Schedules 'a' and 'b' of the plaint belongs to the plaintiff and the defendants have no rights in those properties. There was a compromise in that suit and a decree (Ex. P-1) in terms of the compromise was passed on 20-7-1976 and it was declared that the properties described in the Schedules to the plaint except some area of Khasra No. 926 of village Dalpatpur arc of the ownership of the plaintiffs. Defendant No. 1 Nand Kishore is elder brother of the plaintiff and defendant No. 2 Madanlal is son of Nand Kishore. These facts are not in dispute.

(3.) THE case of plaintiff Jhalkanlal was that he is continuing jointly with his elder brother defendant Nand Kishore. There has never been any partition between the two brothers. The money-lending licence which was in the name of the father was renewed in the name of defendant No. 1 Nand Kishore as he was elder brother. The lands detailed at the foot of the plaintiff is either the ancestral properly or acquired out of the joint family funds. Some of these properties have been acquired in the name of the defendant No. 1 and some in the name of the defendant No. 2. These properties are in joint possession of the plaintiff and the defendant No. 1. There is admission of the defendant No. 1 in the earlier Civil Suit 2-A of 1972 that these lands are the joint properly of both the brothers. The plaintiff claims half share in these properties. According to him the defendant No. 1 is intending to alienate some of the lands and therefore he has filed this suit on 30-10-1986 for declaration that he has half share in these lands and for permanent injunction for restraining the defendants from alienating any of these lands.