TEJ SINGH Vs. HARISHAKAR

JUDGEMENT

(1.) This Second Appeal under Section 100 CPC is directed against the confirming judgment and decree dated 06.09.2014 in civil appeal No.12A/2014 affirming the judgment and decree passed by the Trial Court in Civil Suit No.69 -A/2013. The plaintiff's suit for declaration and partition has been dismissed.

(2.) Facts necessary for disposal of this appeal are to the effect that plaintiff claiming to be the son of Bhairav Lal had filed the suit inter alia contending that his father had died 16 - 17 years ago when he was three years old. After the death of his father, his uncles -defendants No.1, 2 and 3 and his grandfather -Khemchand has routed his mother -Pushpabai and severed the relationship, therefore, she started living with one Bhamarlal Kushwah in Gwalior as his wife and the plaintiff also lived with them. It was further contended that the suit land was recorded in the name of his grandfather -Late Khemchand. The suit property is a joint family property. Therefore, the plaintiff and defendants No.1, 2 and 3 have an equal share in it. However, defendants No. 1, 2 and 3 on 09.09.2009 in collusion with Sarpanch of the Village got the partition done through Tahsildar and their names mutated in the revenue record. After the death of his grandfather - Khemchand when plaintiff went his native place, he was denied his share and that led to filing of the suit for declaration that plaintiff is entitled for 1/4 th share and that the partition dated 09.09.2009 be declared as null and void, as plaintiff is also one of the members of joint family having equal share in the suit property as plaintiff's father -Bhairav Lal and defendants no.1 to 3 are the real brothers sons of Late Khemchand.

(3.) Defendants no.1 to 3 filed written statement and denied the plaint averments. It is denied that the plaintiff is the son of Bhairav Lal. It is submitted that after the death of Bhairav Lal, mother of the plaintiff had severed the relationship from the family and had left the village. The suit property is a joint family property of the defendants No.1, 2 and 3 being son of late Khemchand; Karta of the family, and during his lifetime partition had taken place among them. As Bhairav Lal had died intestate, therefore, the entire property was partitioned among defendants no.1, 2 and 3 and Khemchand. After death of Khemchand, the property left behind by Khemchand devolved upon defendants no.1, 2 and 3. With the aforesaid pleadings, the suit was prayed to be dismissed.