RAMNARESH JAIN Vs. HARESH JAIN AND OTHERS

JUDGEMENT

(1.) The appellant/plaintiff has filed the appeal under Section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 29.3.2004 passed by the VII Additional District Judge, Gwalior (Shri R.K.Joshi) in Civil Suit No.41A of 2004 partly decreeing the suit filed by the plaintiff for partition and possession of his share. In this appeal, the appellant is referred as 'plaintiff' and respondents as 'defendants'.

(2.) The admitted facts are that the deceased-Babulal the real brother of defendant no.1 Shivcharanlal Jain and uncle (Tau) of other parties had purchased a Plot bearing Registration No.908/5 vide registered sale deed dated 8.4.1976 in lieu of Rs.8500/- situated at Phalka Bazar, Lashker, Gwalior in the name of plaintiff and defendant no.2 Haresh Jain and Babulal being the guardian of his nephews.

(3.) Facts, in brief, of the plaint are that the deceased Babulal real brother of defendant no.1 Shivcharanlal Jain and uncle (Tau) of other parties had purchased a Plot bearing Municipal No.1197 Halka No.30 situated at Phalka Bazar, Lashker Gwalior vide registered sale deed dated 5.12.97 in the name of plaintiff and defendant no.2 Haresh Jain. At that time, the shop was situated on the spot in the form of tin shed. Deceased Babulal was in the employment of J.C. Mill and was having separate and independent income from service. He was issuless, so he purchased the suit property under his guardianship in the name of plaintiff and his younger brother Haresh during their minority. The plaintiff and defendant no.2 Haresh Jain by spending Rs.50,000/- constructed a triple storey building. The other defendants being in close relations, were also residing with the plaintiff and defendant no.2 in spite of the fact that the plaintiff and defendant no.2 were only ones having equal share in the house. The bathroom and latrine situated at the first floor were also jointly used by the parties. The plaintiff was running a cycle repairing shop on the ground floor but the other defendants used to obstruct in it and abuse him frequently and also used to deny ownership of the plaintiff. Therefore, on 28.2.1999, the plaintiff served a notice through his counsel upon the defendants for getting the house partitioned and getting possession of his share. But the defendants did not respond to it and continue to obstruct the plaintiff, hence, the plaintiff filed a suit for partition and to get possession of his share to the extent of 1/2.