KRISHNA DEVI SHRIVASTAVA Vs. RAM PRASAD SHRIVASTAVA

JUDGEMENT

(1.) INVOKING appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure, 1908 appellants have filed this appeal challenging the legality, validity, propriety and correctness of the judgment and decree dated 4-10-1997, passed by XIIth Additional District Judge, Jabalpur in Civil Suit No. 543-AI94 decreeing respondents/plaintiffs claim to the extent of 2/9th share in the property left behind by Smt. Laxmi Devi.

(2.) FACTS leading to the filing of this appeal in nutshell are that Mahadeo Prasad and Sharda Prasad were real brothers. Sharda Prasad had three sons namely plaintiff Ram Prasad, defendant No. 4, Shiv Prasad and Jwala Prasad. Laxmi Devi was the wife of Mahadeo Prasad. Smt. Laxmi Devi purchased the suit plot and constructed house on the half portion and remaining half portion remained vacant. As the parents of plaintiff, defendant No. 4 and Jwala Prasad died when they were quite young, they started living with their paternal uncle Mahadeo Prasad. Jwala Prasad was transferred to Pune but his family remained with Mahadeo Prasad. Defendant No. 4 Shiv Prasad was transferred to Bhopal. Jwala Prasad continued to live in the newly constructed house of Smt. Laxmi Devi along with Mahadeo Prasad and Laxmi Devi. After retirement plaintiff Ram Prasad started living in a separate house at Jabalpur. Defendant No. 4, Shiv Prasad was also living separately. Jwala Prasad alone continued to live with Laxmi Devi. Laxmi Devi died issueless in the year 1973. Thereafter, Jwala Prasad continued to live in the suit house. Plaintiff and defendant No. 4 never objected to it.

(3.) THE plaintiff in the alternative also pleaded that even if it is accepted that Mahadeo Prasad, Laxmi Devi and Jwala Prasad were the joint owners of the property in dispute and each were having 1/3rd share, after the death of Mahadeo Prasad, his share devolved to Laxmi Devi and she became the owner of 2/3rd share of the property. In this 2/3rd share of the property, the plaintiff, defendant No. 4 and Jwala Prasad each are having 1/3rd share.