SAROJ DEVI Vs. PRAKASH

JUDGEMENT

(1.) THIS second appeal has been filed by plaintiffs/appellants under section 100 of CPC against the judgment and decree dated 16.5.2008 passed by the learned First Additional District Judge, Gwalior, in Civil Appeal No. 18 A/08 arising out of judgment and decree dated 14.3.2008 passed by learned IX Civil Judge, Class II, Gwalior, in Civil Suit No. 79 A/04 by which suit filed by the appellant/plaintiffs has been dismissed.

(2.) THE briefs facts giving rise to this appeal are that the property in question is comprised in survey No. 536,537,538,540,541,542 (Municipal No. 53/ 846) situated at Naugaja Road, Shinde Ki Chhawani, Lashkar, Gwalior was purchased out of family fund by Dr. C.L. Jain (husband of plaintiff No. 1 and father of plaintiff No. 2 and 3) and defendant Prakash Chandra Jain jointly vide registered sale deed in the year 1966. Since then the above mentioned disputed property is in possession of plaintiffs' ancestor. Eight shops have been constructed in the eastern side of the property and they were let out to different tenants through respective rent notes and getting knowledge that the defendant is trying to sell the disputed property on 14.9.2004. Plaintiffs immediately, asked the defendant not to sell the property or any specific part thereof without partition. But, the defendant threatened the plaintiffs that he will sell the property in parts and dispossessed the plaintiffs. The defendants has no right to sell the property without partition by metes and bounds. So, the plaintiffs lodged a complaint with Police Station, Inderganj and published a notice in the newspaper. No partition has taken place between Late Chhotelal Jain and defendant. Partition proceedings taken before the Tehsildar by the defendant are illegal. Chhotelal has died and no notice were served to the plaintiffs. It is further pleaded by the plaintiffs that since the property has been purchased jointly by Late Chhotelal and Prakash Chandra, they have a preferential right to purchase the same by virtue of Hindu Succession Act and they are ready to purchase the same at the market rate.

(3.) THE learned trial Court by its judgment and decree dated 14.3.2009 dismissing the suit by holding that disputed property has not been purchased by the joint family fund and partition of the disputed property has taken place between Late Chhotelal and defendant and plaintiffs are not entitled to get the disputed property partitioned. The learned lower appellate Court also agreed with the view of the learned trial Court and dismissed the appeal filed by the plaintiffs/appellants.