GOPI NATH Vs. SHIV PRASAD

JUDGEMENT

(1.) This second appeal has been filed at the instance of one of the plaintiffs against the judgment of reversal passed by learned First Appellate Court dismissing the partition suit of the plaintiffs. The admitted facts are that plaintiffs Ramphal and Gopinath are real brothers and they are also real brothers of first and second defendants namely Shiv Prasad and Ramgarib. Defendant no. 3 Suresh Prasad is the son of first defendant Shiv Prasad.

(2.) According to the plaintiffs, the suit property, the description whereof has been mentioned in para 3 of the plaint, is the property of HUF and except survey No. 245 all the other disputed lands were purchased vide registered sale-deed dated 22.11.1951 from one Rama Govind S/o. Bhola Singh for a consideration of Rs. 700/-. At the time of purchasing of the said land and earlier to it all the brothers were residing jointly and their father were also residing jointly. For the convenience, the name of first defendant Shiv Prasad was got mutated, being the eldest brother, in the revenue record. From the funds of HUF major portion of suit property was purchased vide registered sale-deed dated 22.11.1951. According to the plaintiff, survey No. 245 was purchased in the month of June, 1972 in the absence of first defendant from the income of HUF and it is also the property of HUF. According to plaintiff, although the said property was purchased in the name of first plaintiff Ramphal and mutation was also made on 30.07.1992 in his exclusive name, but the said property is of HUF.

(3.) Further the case of the plaintiffs is that after the death of father, the partition took place on 24.12.1983 and the shares were allotted to each coparcener. After partition, the plaintiffs who are real brothers are residing separately while first and second defendants are residing separately. The defendant No. 3 who is son of defendants is also residing alongwith first and second defendants. Further plaintiffs have pleaded that after measuring the entire suit property a partition was effected by meets and bounds but thereafter the defendants tried to interfere in the share which fell in the plaintiffs and hence they have fled a suit for partition praying that they are jointly entitled to half share in the entire suit property and are also entitled to obtain separate possession thereof.