LAXMI NARAYAN Vs. DIWAN SINGH

JUDGEMENT

(1.) This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 21/2/2002 passed by Third Additional District Judge, Vidisha in Civil Appeal No.20-A/2002, thereby affirming the judgment and decree dated 4/7/2000 passed by the Second Civil Judge, Class-II, Vidisha in Civil Suit No.202-A/1994, by which the suit filed by the plaintiff/respondent no.1 was decreed.

(2.) The Second Appeal has been admitted on the following substantial Laxmi Narayan and others Vs. Diwan Singh and another questions of law:-

(3.) The necessary facts for disposal of the present appeal in short are that plaintiff/respondent no.1 and the defendant no.1 Manphool and Motiram are the real brothers. Appellant no.1 is the son of Manphool, who died during pendency of the suit, whereas appellants no.2 and 3 are the sons of Motiram, who had also expired prior to institution of the suit. It is the case of plaintiff/respondent no.1 that survey nos.21, 22, 23, 83, 90, 92, 150, 203, 204, 233, 236, 240, 242 and 250, total area 12.835 hectare situated in village Gehunkhedi, Thasil and District Vidisha was the self acquired property of his father Rajaram, who during his lifetime had bequeathed the property in dispute to the plaintiff/respondent no.1 by Will dated 12/11/1994. It was further pleaded that the father of the plaintiff/respondent no.1 has expired about 30 years' back. By virtue of the Will executed by Rajaram, the plaintiff/respondent no.1 became the sole owner of the property in dispute and from thereafter, he is in exclusive possession of the same. The defendants/appellants filed an application before the Court of Tahsildar claiming that they have 2/3 rd share in the property, whereas the plaintiff/respondent no.1 has 1/3 rd share in the property and the property has not been partitioned so far, Laxmi Narayan and others Vs. Diwan Singh and another therefore, the same may be partitioned. The plaintiff/respondent no.1 filed an objection that since their father has already executed a Will in his favour, therefore, he is the sole owner of the property in dispute. However, by order dated 1/5/2018 the objection raised by the plaintiff/respondent no.1 was rejected. Being aggrieved by the order of the Tahsildar, the plaintiff/respondent no.1 filed a revision before the court of Collector, Vidisha and the said appeal by order dated 28/9/1985 was allowed and the order of the Tahsildar was set aside and the plaintiff/respondent no.1 was directed to obtain the decree of declaration from the Court of competent jurisdiction. Accordingly, the suit for declaration of title and permanent injunction was filed on the basis of Will.