DILIP KUMAR JAIN Vs. SHOBHARANI JAIN

JUDGEMENT

(1.) The appellant/plaintiff has preferred this appeal under Section 96 of Civil Procedure Code being aggrieved by the order dated 24-2-1998 passed by District Judge, Jabalpur in Civil Original Suit No. 43-A/1996 whereby suit for partition, possession, declaration and perpetual injunction has been dismissed by allowing the application under Order 7, Rule 11 of CPC filed by respondent Nos. 1 2, 4 and 5.

(2.) The facts giving rise to this appeal are that the plaintiff, the son of respondent No. 3 and nephew of respondent Nos. 2, 4 and 5 and grand-son of respondent No.1, filed the present suit for partition, possession, declaration and perpetual injunction regarding house property hearing house No. 569 (Old No. 664, 665 and 666), situated at Bhaldarpura, Sarafa Ward, Jabalpur. According to the plaint assertions late Mool Chand Jain died before 90 years and his son Lalchand Jain, died before 50 years leaving behind three sons namely, Late Pannalal Jain, Prem Chand Jain and Shikhar Chand Jain. The ancestral property was divided by Late Lal Chand Jain in his lifetime amongst his sons, Panna Lal and Premchand were given some other properties while house in dispute was given to the youngest son Late Shri Shikhar Chand Jain who died on 5-12-1958 and thereafter being his legal representatives his wife respondent No.1, Smt. Ladli Bahu and sons respondent No. 2 Padman Kumar; respondent No. 3 Pushp Kumar Jain, respondent No. 4 Pawan Kumar Jain and respondent No. 5 Chand Kumar Jain inherited the said house. It has also been pleaded that this being the ancestral property they all have equal shares being coparcener. It is further pleaded that Lalchand Jain had purchased this house on 28-1-1937 and on his demise it has become ancestral property.

(3.) It is further set forth in the plaint that after demise of said Shikhar Chand Jain on 30-3-1972 a document which has been nomenclatured as "Dastwari" (Document of relinquishment) was executed by respondent Nos. 2 to 5 in favour of respondent No. 1 and same was registered as per prescribed procedure and subsequently a plan was prepared by respondent Nos. 1, 2, 4 & 5 to transfer the property against the interest of respondent No. 3 and same was implemented in different parts and as alleged before three years three shops of disputed house were sold for consideration of rupees three lacs by executing a document of transfer by respondent No. 1. A part of this house was shown to be purchased by respondent No. 4 by way of registered deed dated 2-3-1989 and consideration was arranged by availing loan from his employer M.P.E.B. at the subsequent stage other part of the property which was allegedly the share of respondent No. 5 was also sold for consideration of rupees eight lacs and as per pleadings respondent Nos. 1, 4 and 5 have already disposed of their shares and remaining property is only of the branch of respondent Nos. 2 and 3.