SHASHI AGRAWAL Vs. RAM CHANDRA AGRAWAL

JUDGEMENT

(1.) This order shall decide IA No.3599/07, appellant's application under Order XLI rule 5 of the CPC for grant of stay against the execution of the impugned decree and IA No. 10254/07, respondent's application under Order XLI rule 5(3)(c) of the CPC for imposing some conditions on granting the stay against the execution of the impugned decree.

(2.) The facts which are necessary to adjudicate the aforesaid I.As in brief are that in respect of House No.739 and 739/1 (New No.880) situated in Maratal, Ram Manohar Lohiya Ward, Jabalpur, the respondent herein filed a suit against the appellant seeking declaration to declare him to be the owner of 2/3rd share in it with a prayer of its partition, separate possession and mesne profits. As per the case of the respondent, initially the aforesaid house was purchased jointly by the respondent, his brother Krishna Kumar and father Rameshwar Prasad vide registered sale deed dated 1.5.1972, since then the respondent was the co-owner of the property along with the father and brother. Subsequently, his father Rameshwar Prasad bequeathed his share to the appellant by way of Will dated 7.12.1985 and, on his demise, the appellant became the owner of the 1/3rd share of the said house, while the brother Krishna Kumar transferred his right in favour of the respondent by a registered document dated 25.9,1995. Accordingly, he became the owner of 2/3rd share of the aforesaid house. In such premises, the respondent filed the aforesaid suit for obtaining separate possession of his 2/3rd share. Such suit was contested by the appellant on various grounds including that it was the sole property of Rameshwar Prasad and the name of the respondent and Krishna Kumar was mentioned in the document only on account of love and affection. Hence, in view of the exclusive property of Rameshwar Prasad, his other legal representatives are also having the share in it, and without impleading them as a party to the suit, neither the suit can be entertained nor the same can be decreed.

(3.) After holding the trial, on appreciation of the evidence, the suit of the respondent has been decreed by the trial court by holding his 2/3 rd share in such house. The decree has also been passed for giving separate possession to the respondent but the suit was dismissed on the question of mesne profits. Such preliminary decree is under challenge at the instance of the appellant/defendant.