BHAGWANDAS Vs. KESHRIMAL (SINCE DEAD)

JUDGEMENT

(1.) This appeal under section 96 CPC by the plaintiff/appellant is directed against the judgment and decree dated 13/12/2006 passed in civil suit No.41A/2004 by VII Additional District Judge, Indore dismissing the suit for declaration of title, partition, possession and permanent injunction against the defendants.

(2.) The suit was filed seeking partition of house No.24 (new No.31) Malharganj Main Road described in paragraph 1 of the judgment and apportionment of half portion thereof in favour of the plaintiff (for short, 'the suit house').

(3.) It has been pleaded that the plaintiff, Bhagwandas and defendant No.1, Kesharmal are real brothers and defendant No.2 Purshottam alias Rajeev Agrawal is the son of defendant No.1. The suit house was of the ownership and possession of Smt. Kala Bai wd/of Kasturchand; mother of the plaintiff and defendant No.1. She has purchased the suit property by a registered sale deed dated 13/01/1969. After sad demise of Smt.Kala Bai on 01/04/1997, the plaintiff and defendant No.1 became entitled to equal shares of the suit house by way of natural succession. Accordingly, they are in possession of their respective portions. In the municipal record, mutation was also done to the same effect. Defendant No.1 taking advantage being elder brother in collusion with his son defendant No.2 has questioned the right and interest of the plaintiff over the suit house and threatened for forcible eviction picking up fights and physical assault. The plaintiff served a notice on 01/05/2004 against the aforesaid conduct of the defendants. Defendants denied the allegations in the reply. Thereafter, the defendant No.2 served a notice on 20/05/2004 coining a surprise to the plaintiff that late Smt. Kala Bai before her death had executed a 'Will' dated 01/03/1997 in favour of the defendant No.2 bequeathing the entire house. As such, the defendant No.2 has become exclusive owner thereof. Thereafter, the plaintiff has filed the instant suit.