BHERULAL Vs. RAMKUNWARBAI

JUDGEMENT

(1.) This first appeal, filed under Section 96 of the Code of Civil Procedure (for short 'the Code') is directed against the judgment and decree dated 19-1-1976 rendered by the 1st Addl. Judge to the Court of District Judge, Ratlam in Civil Suit No. 2-A/75 thereby dismissing the appellant's suit for partition and separate possession of the suit-houses.

(2.) The factual matrix in brief is that the deceased Motilal and Gendalal were two real brothers. The elder brother Gendalal was unmarried and died issueless, on 24-10-54. The appellant-plaintiff Bherulal was born to Motilal from first wife. The two daughters (Chamelibai and Shantibai) and one son (Rajendra Kumar), respondents Nos. 2 to 4 were born to Motilal from his second wife, Ramkunwarbai (respondent No. 1). Motilal also died in 1969. The house situated in Kothari was, Ratlam stood in the name of the brothers Gendalal and Motilal whereas the other house situated as Station Road stood in the name of Gendalal alone. Bherulal came with a case that he was an adopted son of Gendalal (this plea is given up in this appeal). On refusal of the demand of partition of these two houses, the appellant filed the civil suit as above and claimed the damages at the rate of Rs. 200/- per month for wrongful use and occupation. The respondents resisted the claim and contended that one house belonged to the deceased Motilal whereas the another house was acquired by both the brothers, although in the name of Gendalal. The adoption was also disputed. It was pleaded that on death of Gendalal Motilal became the sole owner of both the houses and that in his lifetime Motilal executed a will on 15-6-59 (Ex. D/1) bequeathing his entire rights to his wife Ramkunwarbai respondent No. 1. On this linchpin, it was averred that the appellant possessed no right, title or interest. Certain other objections were also raised. On evaluation of the evidence the trial Court held that the alleged adoption was not proved, that Ramkunwarbai became the exclusive owner of the suit houses after the death of her husband Motilal and acquired exclusive rights on the basis of the will (Ex. D/1). On the basis of this conclusion the suit of the appellant was dismissed. Aggrieved by this judgment and decree, the appellant has preferred this first appeal

(3.) I have heard Shri S. D. Sanghi, learned Senior counsel with Shri N.K. Sanghi for the appellant and Shri Vyas with Shri Apte, learned counsel for the respondents and have perused the record.