LAWS(MPH)-2013-12-63

VASANT KUMAR JAIN Vs. MANAKCHAND

Decided On December 06, 2013
Vasant Kumar Jain Appellant
V/S
MANAKCHAND Respondents

JUDGEMENT

(1.) This appeal under Section 96 of the Code of Civil Procedure 1908 by the defendant/appellant has been filed against a judgment and decree dated 1st February 2002 rendered in Civil Suit No. 17A/2000 by the Fourth Additional District Judge, Vididha (M.P.) decreeing thereby the suit of the plaintiffs for declaration of title over the suit property (House No. 34) situated in Ward No. 5 of the Municipal Council, Vidisha by issuing permanent injunction against the defendant/appellant.

(2.) The facts in short just for the decision of this appeal are that Pannalal (deceased), the progenitor of the joint family died leaving behind his widow Smt. Rajkumari @ Rajjobai and their three sons, namely, Amarchand (late), Pooranchand (late) and Vasant Kumar (defendant/appellant herein) and also left two houses, first (suit house) is situated in Ward No. 5 which was being used for family residence whereas another is situated in Ward No. 6 which was in a ruined condition and abandoned. The family properties, i.e., two houses mentioned above inherited from late Pannalal Jain were orally partitioned between the successors-members of the family. After family oral partition on the spot, one memorandum of partition, though denied by the defendant/appellant was executed in pursuance of which the successors, namely, Smt. Rajkumari widow of Pannalal, Amarchand and Pooranchand except Vasant Kumar who had no share in that house again partitioned the house on meets and bounds by executing the deed of family settlement on 26/3/1980 whereunder separate and exclusive shares were given. It is stated that before death of Smt. Rajkumari @ Rajjobai wife of Pannalal, she also executed the unregistered Will dated 20th June 1987 in favour of the plaintiffs. So, after death of Rajkumari @ Rajjobai, the plaintiffs being entitled claimed her share on the basis of the alleged Will. They filed the suit for declaration of title over the House No. 34 situated in Ward No. 5 coupled with the share of Smt. Rajkumari @ Rajjobai with a prayer for perpetual injunction against the defendant/appellant.

(3.) The defendant/appellant Vasant Kumar though admitted the factum of houses belonging to Joint Hindu Family vis-a-vis partition of the property between the family members, objected to the subsequent family settlement deed executed between them. He disputed that after partition, the plaintiffs and their family started residing in the disputed house as mentioned in the family settlement. The defendant/appellant admitted that the house which was in a ruined condition was given to him in the partition and after constructing the house over there he and his family started residing in the newly constructed house. He further disputed that four rooms falling in portion of Smt. Rajkumari were let out to tenant Ram Narayan Neema at the monthly rent of Rs. 150/- but admitted the facts that for eviction of the rented portion, he filed a suit against tenant Ram Narayan Neema, which was decreed in his favour vide judgment and decree dated 5th July, 1991 and thereafter the plaintiffs Manakchand and others moved for setting aside ex-parte decree dated 5th July 1991 issued in his favour which was dismissed vide judgment and decree dated 23rd June 1995 and on appeal by the plaintiffs (Regular Appeal No. 71-A/1995), the appellate court by confirming the judgment and decree dated 23rd June 1995 dismissed the same vide judgment and decree dated 26th February 2000. It was further contended by the defendant that he also challenged the execution of unregistered Will executed by Smt. Rajkumari @ Rajjobai in favour of the plaintiffs. Hence, taking the aforesaid grounds it was prayed before the trial court by the appellant for dismissal of the suit preferred by the plaintiffs.