RAMESH CHANDRA NIGAM Vs. RAMPRASAD NIGAM

JUDGEMENT

(1.) THIS appeal under Section 100 of the CPC is at the instance of the plaintiff in the suit challenging the judgment of the first appellate Court dated 11 th April, 2005 passed in CA No.2 -A/2005 whereby the first appellate Court has partly allowed the appeal and cross objection. The trial Court by the judgment dated 1/3/2004 had dismissed CS No.136 -A/1998 filed by the appellant.

(2.) APPELLANT had filed the suit for declaration and permanent injunction pleading that he was the owner in possession of the suit property. Appellant Ramesh Chandra and respondent No.1 Ram Prasad, are the sons of Motilal. Motilal's third son Udaisingh had died issueless. It was pleaded that Motilal had died on 27/2/1952 and the respondent No.1 was given in adoption to Govindrai on 5/9/1953. The adoption was done as per the custom and since respondent No.1 was given in adoption, therefore, he had no share in the property of Motilal. It was further pleaded that respondent No.1 claiming himself to be the son of Motilal fraudulently got the property mutated in his name and when the appellant came to know about it he filed the suit for declaration and injunction.

(3.) THE trial Court by the judgment dated 1/3/2004 had dismissed the suit finding that Rajesh Kumar was not competent to file the suit on behalf of the appellant Ramesh Chandra. Other findings were recorded in favour of the appellant that the suit property was in the ownership and possession of the appellant and that the partition between the parties was not proved. The fact that the respondent No.1 was given in adoption in 1953 -54 to Govindrai was proved and it was held that the respondent No.1 had no right on the suit property. It was also held that on the death of Motilal on 27/2/1952, the appellant and his brother Udaisingh had received the property in equal share and on the death of Udaisingh in 1970, who had died issueless, the appellant had received his share as his legal heir. The suit of the appellant was accordingly dismissed by trial Court.