GAFOOR Vs. GULABBAI

JUDGEMENT

(1.) THIS is defendants' second appeal against the judgment and decree of reversal passed by the Trial Court decreeing the suit of plaintiff.

(2.) ORIGINAL plaintiff is Kasam Bhai whose legal representatives are respondents of this appeal and the original defendant is Hasanbhai whose legal representatives are present appellants. Appellant No. 1 who is one of the legal representative of defendant Hasanbhai breathed her last during the pendency of this appeal, as a result of which vide order dated 27 -1 -1998 her name was directed to be deleted from the array of the memorandum of appeal. For the convenience the parties who are the legal representatives of original plaintiff and original defendant, are being denoted as plaintiff and defendant.

(3.) IN brief the suit of plaintiff is that he and defendant are the owner of the suit house and both of them are having one half share each in the suit property. Kasambhai -plaintiff and defendant -Hasanbhai are the real brothers. One person, namely, Jamaluddin is also the brother of the parties. According to the plaintiff, he, Hasan Bhai and Jamaluddin jointly constructed the house, however, since Hasanbhai is the eldest, his name was mutated in the municipal record. Thereafter, Jamaluddin filed a suit for partition in which instead of claiming l/3rd share, he prayed for the payment of Rs. 500/ - which is in lieu of his l/3rd share. This suit was decreed on 19 -6 -1945 and accordingly in place of l/3rd share a decree was passed for the payment of Rs. 500/ - to said Jamaluddin. In that civil suit (C.S. No. 70/1351) present plaintiff and defendant were arrayed as defendants. The decretal amount Rs. 500/ - was paid by plaintiff -Kasambhai to Jamaluddin. Thus, present plaintiff and defendant are the joint owners of the suit property having 1/2 share of each in it.