PRASANNA KUMAR RAM Vs. NABAKISHORE RAM

JUDGEMENT

(1.) The appellant, who was the plaintiff in T.S. No. 90/571 of 2006/2001, being aggrieved by the judgment and decree dismissing the suit on contest against the defendant Nos. 2 and 5 and ex parte against defendant Nos. 1, 3 and 4 has preferred this appeal. The appellant who was the plaintiff in the Court below (hereinafter referred to as "the plaintiff"), filed the suit for partition of Lot Nos. 1 and 2 properties of the plaint suit schedule, which are said to be his ancestral properties. Admittedly, the plaintiff is the son of defendant No. 1. Plaintiff and defendant No. 1 as well as proforma defendant Nos. 3 and 4 belong to one family. It is the case of the plaintiff that suit plot No. 1205 described. as Lot No. 1 property in the plaint schedule was leased out by the Government in G.A. Department in favour of Rajendra Ram, who happens to be his grand father and father of defendant No. 1. The said Rajendra Ram constructed several shop rooms over the said plot No. 1205 and let out to different tenants. Rajendra Ram died in the year 1970 leaving behind his only son, namely, defendant No. 1. The suit property was recorded in the name of Rajendra Ram and after his death it was mutated in the name of defendant No. 1. Lot No. 2 property, i.e., plot No. 664 is the ancestral residential house of the parties, which was constructed out of the joint family fund and was renovated from time to time for the comfortable living where the plaintiff used to stay. The said plot No. 664 stands recorded in the name of defendant No. 1, who is the father of the plaintiff and Bijan Ram, father of the proforma defendant Nos. 3 and 4. Plot No. 664 appertains to Khata No. 513 and in that Khata there exists two plots, i.e. plot No. 664 and 665. Plot No. 665 was allotted to Bijan Ram by an amicable partition and defendant No. 1 got plot No. 664. In the record of right Khata No. 513 stands recorded in the name of defendant No. 1 and Bijan Ram. It is alleged that proforma defendant Nos. 3 and 4 have no interest over Plot No. 664 by virtue of the previous amicable partition between Naba Kishore Ram and Bijan Ram. According to the plaintiff, he is the only son of defendant No. 1 and therefore, he has 50% share in the properties described in Lot Nos. 1 and 2 of the plaint suit schedules. It is alleged by the Plaintiff that his father Defendant No. 1 being guided by some unscrupulous persons, attempted to sell away the properties and when the plaintiff came to know about that from one Kunja Kishore Ram, he requested his father to refrain from that, but his father (defendant No. 1) did not pay any heed to that but on the other hand, rebuked the plaintiff and challenged him to do whatever he likes. Thus, the plaintiff being disgusted with the attitude of his father, namely, defendant No. 1, asked him for partition of the suit properties, which defendant No. 1 flatly refused for which the plaintiff instituted the suit seeking partition. During pendency of the suit and in course of hearing of the miscellaneous case, the plaintiff came to know that defendant No. 1 has sold away Lot No. 1 property to defendant No. 2 on 29.10.2001. According to the plaintiff, he used to derive income out of the shop rooms, which were built by his grand father, Rajendra Ram @ Raja Ram over Lot No. 1 property and since that property is the ancestral property of him as well as defendant No. 1, he and defendant No. 1 (father), each has 50% share over the same. The plaintiff alleges that when the defendant No. 1 came to know about the partition suit filed by the plaintiff, he (Defendant No. 1) deliberately sold away Lot No. 1 property to defendant No. 2 without his knowledge, and consent as well as without having any legal necessity. It is further alleged that the defendant No. 1 had no right to sell more than the share due to his share and that apart, he cannot sell away the ancestral joint family property. According to the plaintiff, the sale of lot No. 1 property by defendant No. 1 to defendant No. 2 is void in the eye of law and even if such sale has taken place, the same does not affect the plaintiff's interest. Thus, when on 1.10.2001 the plaintiff asked the defendant No. 1 for partition and when that was refused, the plaintiff finding no other way out had to institute the suit for partition of the suit schedule properties

(2.) Defendant No. 1 and proforma defendant Nos. 3 and 4 were set ex parte since they did not appear in the Court when hearing of the suit was taken up.

(3.) Defendant Nos. 2 and 5 contested the suit by filing their separate written statement.