MANILAL Vs. DHANJI BHAI

JUDGEMENT

(1.) THE appellants/defendants No.2 to 4 have preferred the present appeal against the judgment and decree dated 4.12.2003 passed by the learned First Additional District Judge, Betul in civil suit No.42-A/2002, whereby a decree of declaration was granted in favour of the respondent No.1 (Dead and represented by his Legal representatives) that the plaintiff/respondent No.1 had half of the share in the property plot No.36/3, area 459.25 square feet and plot No.35, area 7730 square feet in Nazul sheet No.25 in Betulganj Nazul area and decree of possession was also granted for that portion, which was adjacent to Jain Mandir, which is under construction. Cost of suit was also directed to be paid to the plaintiff.

(2.) THE plaintiff has filed a civil suit before the trial Court that he was a handicapped and old person, who was residing with his son at Mumbai. On 26.6.2000, he executed the power of attorney in the name of Siddique Patel. Two plots No.35 and 36/3 shown in Nazul sheet No.25, situated at Jawahar Ward, Betul were of Asai Bai, mother of the plaintiff. After death of his mother, she left four sons. Out of them, one son Veerji Bhai had already expired and remaining sons of the deceased were residing in the same house. In compliance to the wishes of Asai Bai, Damji Bhai and Keshav Bhai, brothers of the plaintiff, executed a release deed dated 17.7.1973, which was registered on 30.7.1973 and therefore, the plaintiff and defendants No.2 to 4 became the owners of that property. In that property, the plaintiff had half of the share, whereas the defendants No. 2 to 4 being legal representatives of Veerji Bhai received half of the share. The plaintiff was suffering from some disability and therefore, he had shifted to Jabalpur and thereafter to Mumbai. In September, 1998, the plaintiff came to Betul and agreed to execute a partition deed with the defendants No.2 to 4 but, he was advised that a receipt of partition be prepared to save the stamp duty and the defendants No.2 to 4 received his signatures on various documents and papers. Thereafter, he was informed that sufficient time will be required to get the documents notarized. He was assured that the documents would be sent to him by post. No document was provided to him and therefore, he informed Harak Chand Shah, nephew of the plaintiff to get the documents from the defendants No.2 to 4 and to remit such documents to the plaintiff. When the plaintiff received the documents, he found that he was given 1/5th share in the suit property and his signatures were found due to fraudulent misrepresentation on the various documents. He gave a legal notice through his counsel to the defendants No. 2 to 4 but, no reply was given by them and therefore, the plaintiff filed a civil suit for declaration of his share and getting possession of that portion after partition.

(3.) THE learned Additional District Judge, after considering the pleadings of the parties prepared as many as 9 issues and one additional issue and after recording the evidence, the suit was decreed for declaration, partition and possession of the plaintiff.