KANTA SHARMA Vs. DEVKRISHNA GAUR

JUDGEMENT

(1.) APPELLANTS have filed this appeal under Section 96 of Code of Civil Procedure, 1908 against the judgment and decree dated 24 -12 -2005 passed by learned Second Additional District Judge, Gwalior in Civil Suit No.24 -A/2005 whereby the suit for partition and possession filed by the appellants/plaintiff has been dismissed.

(2.) BRIEF facts of the case are that the original plaintiff Harikrishna Sharma and defendant No.1 -Devkrishna Gaur were real brothers and sons of Vishambhar Dayal and Smt. Kalawati and the house bearing No.545 and 507 situated at Patankar Bazaar, Gwalior is the property of joint hindu family property of the appellants and respondents which were constructed by their father Vishambhar Dayal from his own income. Appellants and respondents lived together as joint hindu family up to 1964 their family has remained joint even after the plaintiff -Harikrishna Sharma joined the military services in 1944. Harikrishna Sharma was transferred and posted at Gwalior in 1968 and was in the need of more space. In the above mentioned house one room was always in possession of the plaintiff but it being insufficient, he demanded more accommodation in the house. Refusal of demand of plaintiff has culminated in family dispute and Harikrishna Sharma was forced to live in a rented house. Although one room in the disputed house marked as "A" remained in possession of the plaintiff. In 1974 Harikrishna Sharma got retired from military services and demanded partition of the joint hindu family property and also his share in the rent of the shop which was situated in front of building in which one room of plaintiff was there. Plaintiff/Harikrishna Sharma had served a notice upon the defendant for partition but the defendant gave no reply to the notice and did not make any partition of the suit property, therefore, the suit has been filed by the plaintiff before learned trial Court.

(3.) THE original defendant in his written statement has pleaded that the plaintiff was never in possession of disputed house and house as left by Vishambhar Dayal was having only two rooms. Rest of the rooms were constructed by the defendant from his own resources and the Plaintiff/Harikrishna Sharma has no right in the said house. Possession of Plaintiff/Harikrishna Sharma over one room under his lock and key was also denied. It has also been pleaded by the defendant that the Plaintiff/Harikrishna Sharma was adopted by some Chauthmal Sharma in the year 1928 and he started living with Chauthmal Sharma at Baraseoni District Balaghat and by virtue of adoption, plaintiff/Harikrishna Sharma has lost his rights in the property of his natural father -Vishambhar Dayal. Family ornaments were in possession of the plaintiff/Harikrishna Sharma and other family properties situated at Gharasu (Haryana) and the property of Baraseoni was also required to be made subject to partition suit, therefore, the suit for partition for incomplete property is not maintainable. The suit was also opposed by the defendant on the ground of it being time barred and insufficient court fee paid by the plaintiff/Harikrishna Sharma.