KRUSHNA PRASAD MISRA Vs. PANCHANAN MISRA

JUDGEMENT

(1.) Defendants 3 to 6 are the appellants challenging the judgment and decree passed in T.S. No. 59 of 1980 by the learned Subordinate Judge, Jaipur wherein he has preliminarily decreed the suit for partition in respect of A. 4.93.3 links of land.

(2.) To appreciate the real controversy, it is essential to indicate the admitted genealogy showing the relationship between the parties:As per the plaintiff, Dhani the common ancestor was the owner in possession in respect of Ac. 9.47, 1 kadi 12 Biswas of land. As Jagannath's branch became extinct, Upendra became the sole successor in or about 1930. During the period between 1929 to 1974, Upendra acquired nearly 9 1/2 acres of land in his name exclusively. In the year 1972, as there was dissension between the family, partition was done by mutual agreement.After separation defendants 1 and 2 as plaintiffs instituted, Title Suit No. 38/1977 seeking the relief of partition against the present appellant and others. In the said suit all the properties belonging to the family were covered except 4.97.3 links which is the subject matter of the present suit. It has been alleged in the plaint that the aforesaid property was not included in the hotchpot on the ground those properties were gifted by Upendra in favor of present defendants 3 to 6, sons of defendants Nos. 1 and 2. The plaintiff challenged the validity of the gift deeds in favour of defendants 3 to 6, on the ground that the properties covered under the said gift deeds are partly ancestral and partly selfacquired with the aid and assistance of the joint family nucleus and therefore, ignoring his interest, Upendra could not have gifted in favour of said defendants.

(3.) Defendants 3, 4 and 5 filed a joint written statement resisting the claim of the plaintiff. The defendant No. 6, being a minor was represented by the G.A.L. Other defendants chose not to contest the suit. The contesting defendants have taken the stand that the gifted properties are the self-acquired properties of Upendra and he had complete authority to gift the same. The properties having been rightly gifted are not available for partition. That apart, a stand has also been taken that in the written statement in the earlier suit, the present-plaintiff who was the defendant there in had abandoned the claim in respect of the present suit schedule properties and therefore, the suit is barred by the principles of constructive res judicata. The plea of limitation has been also canvassed as the suit to set aside the deed of gift has not been brought within the period of limitation from the date of knowledge. Immense emphasis has been laid on the findings of the earlier judgment.