DEREK RODRICKS Vs. RAMDEO & ORS.

JUDGEMENT

(1.) Being aggrieved by the Judgment and the Decree dated 30.3.95 passed by III ADJ, Ratlam in civil suit No. 79A/88 whereby the suit filed by the appellant for partition, separate possession of appellant's share and for accounts from defendant No. 1 has been dismissed, the present appeal has been filed.

(2.) Short facts of the case are that appellant filed a suit alleging that appellant, respondent Nos. 1 and 2 are the real brothers and respondent Nos. 3 to 7 and Mrs. Edelied who was defendant No.3 before the learned court below were the sisters. It was alleged that Jeffery Rodricks, the father of the parties died in the year 1956. His wife and mother of the parties, Mrs. Issabella died in June 1968. It was alleged that Mrs. Issabella owned a plot at Retired Colony at Ratlam measuring 85 ft. East-West and 145 feet North-South. It was also alleged that over this plot, Mrs. Issabella built a house and named it as Peace Haven. It was also alleged that Mrs. Issabella executed a will dated 26.3.68 whereby she made arrangements for disposal of suit property and also movable properties kept in the suit house. The original will is with respondent No.1. It was alleged that appellant came to know about the will from respondent No.1 who showed it to the appellant. It was alleged that in case No. 1/83, which was for grant of letter of administration, respondent No. 1 denied that there was disposal of property by Will. It was alleged that respondent No.1 while managing the house on behalf of his brothers has got the house assessed separately in the name of three brothers and got the separate number plates fixed on the house and paid taxes on behalf of three brothers and has inducted tenants. It was alleged that by the will, appellant and respondent Nos. 1 to 3 are equal owners of the house, It was further alleged that respondent No.3 who migrated to Canada has made over title of movable and immovable property in favour of the appellant. It was further alleged that on 10.1.83 when the appellant came to Ratlam, at that time appellant occupied half of the middle portion of the house. It was alleged that on 21.8.83 respondent No. 1 lodged a complaint against the appellant to the effect that appellant has locked the entrance door. With the aforesaid facts, the suit was filed.

(3.) Respondent No.1 filed written statement wherein it was admitted that allegations made in para 3 of the plaint that Mrs. Issabella regarding her above mentioned immovable and movable property made their disposal by will dated 26.3.68 but it was denied that original will is held by defendant No.1. It was held that original will is with Neville, respondent No.2, It was alleged that appellant migrated to Canada in the year 1969 and released his share to respondent No. 1 in consideration of Rs. 21,000/-. It was alleged that appellant was never been in possession of the property since 1969 and hence the appellant cannot claim any right on the basis of possession. It was also alleged that respondent No.1 is in adverse possession of the property against the appellant and rest of the respondents. It was prayed that suit be dismissed. On the basis of pleadings of parties, learned Trial court farmed the issues, recorded the evidence and dismissed the suit.