GOVERDHANDAS AGRAWAL Vs. GOPIBAI AGRRAWAL

JUDGEMENT

(1.) THIS judgment shall govern aforesaid both the appeals arising out of the same judgment and decree dated 17-2-1992 passed by First additional District Judge, to the Court of District Judge, Bhopal in Civil Original suit No. 20-A/1985 whereby the suit for partition and separate possession filed by the Gopibai plaintiff, the appellant of F. A. No. 111/92 while the respondent no. 1 of F. A. 110/92 against the deceased defendant Govardhandas the predecessor of the respondent No. 1 to 3 of F. A. No. 111/92 while the appellant nos. 1, 2 and respondent No. 3 in F. A. No. 110/92 has been decreed in part for 1/4 share in the disputed house. Hereinafter for brevity said Gopibai and govardhandas with his legal representatives are said to be plaintiff and defendant respectively Being aggrieved by the aforesaid decree the plaintiff filed the appeal for enhancement of her share in the property from 1/4 to 1/2 while on behalf of the defendant the appeal is preferred for setting aside the entire decree by dismissal of the suit.

(2.) IT is not in dispute that the principal owner of the disputed house late chhotulal was the father of late Smt. Saoubai, the mother of both the parties.

(3.) THE facts giving rise to these appeals in short are that the plaintiff Gopi bai filed a suit against the deceased defendant Goverdhandas for partition with separate possession claiming half share of house No. 39 situated in the lane of opposite Shriji Mandir at Lakherapura, Bhopal. As per averments of the plaint late Chhotulal bequeathed the disputed house to said Smt. Saoubai, through Will, by virtue of it she became owner of it in 1936 on the death of Chhotulal. Since then till death of Saoubai she remained in possession of it and also kept some tenants in some part of it. The plaintiff got married in the lifetime of said chhotulal but her husband had died in the year 1940. Thereafter for some time she resided in the tenanted house but due to sickness of said Saoubai and jagannath the parties of the parties to look after them she resided with them in the disputed house. Subsequently, Summa Bai gave her a part of said house separately comprising two rooms at first floor along with open yard (Dahlan) for her residence. It is further pleaded that defendant had gone to Ujjain with his family in the year 1940 from where he came back to Bhopal after 9-10 years. During this period plaintiff was residing in the house. In the year 1960 on demise of Saoubai the plaintiff and principal defendant being her heirs inherited such house in equal share, since then they being joint owner of the property are in possession of it. Thereafter plaintiff demanded her share and separate possession of the house by partition but the defendant was not ready to it, thus after giving the notice to defendant she filed the suit for declaration of her half share with separate possession through partition. In alternative it was pleaded that in case the right of the plaintiff is not found in such property, even then considering the circumstance that she was residing with the mother in such house she be permitted to reside there for her remaining life by restoring her possession.