SATYANARAYAN PRASAD JAISWAL Vs. JAMUNA PRASAD JAISWAL

JUDGEMENT

(1.) This is an appeal under Section 96 of the Code of Civil Procedure, 1908, against the Original Decree dated 30.12.87 passed by the Additional District Judge-I, Manipur in Original Suit No. 5/85/7/85.

(2.) The aforesaid Original Suit was filed by one Jamuna Prasad Jaiswal, plaintiff in the suit and respondent No. 1 in the present appeal, for a decree for possession of rooms described in Schedules-D and E to the plaint by eviction of Satyanarayan Prasad Jaiswal and Shio Narayan Prasad Jaiswal, defendants No.1 and 2 in the suit and the appellants in the present appeal. The case as pleaded in the plaint is that Guru Dayal Ram Jaiswal was a Hindu governed by Mitakshara School of Hindu Law who died in the year 1934 leaving behind two sons Mukhlal Ram Jaiswal and Munilal Ram Jaiswal, the joint family of Guru Dayal Ram Jaiswal comprising of the aforesaid father and two sons owned several movable and immovable properties. After the death of Guru Dayal Ram Jaiswal, Mukhlal Ram Jaiswal became the Karta of the Joint Hindu Family consisting of himself, his brother Munilal Ram Jaiswal, his sons and his brother's sons. The only son of Munilal Ram Jaiswal was Baijnath Jaiswal who died as a bachelor in the year 1952 and the only daughter of Munilal Ram Jaiswal Tara Devi got married and the widow of Munilal Ram Jaiswal Janaki Devi expired in the year 1981. Munilal Ram Jaiswal died in the year 1963 and on his death all his right, title and interest in all properties whether self-acquired or of the Joint Family property developed on the surviving members of the said Joint Family and Mukhlal Ram Jaiswal became the Karta of the said Joint Hindu Family, Mukhlal Ram Jaiswal died on 24.3.76 leaving behind his four sons Jamuna Prasad Jaiswal ( plaintiff), Satyanarayan Prasad Jaiswal (defendant-1), Shio Narayan Prasad Jaiswal (defendant-2) and Ram Narayan Prasad Jaiswal who expired in the year 1980 and one daughter Rukmini Devi who got married in the year 1956, Ram Narayan Prasad Jaiswal had seven sons of whom Premchand Prasad (defendant-3) was the eldest and two daughters who were married. After the death of Mukhlal Ram Jaiswal, the family continued to be a Joint Hindu Family jointly owning and possessing the immovable properties mentioned in Schedule-B to the plaint which were located and situated in different parts of the Manipur, Dimapur and Bihar, Practical difficulties, however arose in the management of the said properties by Jamuna Prasad Jaiswal as Karta of the said Joint Hindu Family and on 23.5.83 it was agreed to have a family settlement in respect of the properties mentioned in Schedule-B to the plaint in order to preserve family peace and to keep the feeling of unity in the family. As per the said agreement, the plaintiff/respondent No. 1, Jamuna Prasad Jaiswal as Karta of his Family consisting of himself, his sons and unmarried daughter was to have exclusive ownership and enjoyment of the properties given in Schedule-B/1 to the plaint ; and SatyaNarayan Prasad Jaiswal (appellant No. 1/defendant No.1), Shio Narayan Prasad Jaiswal (appellant No.2/defendant No.2) and Prem Chand Prasad Jaiswal ([proforma respondent/defendant No. 3) acting on behalf of themselves and other members of their respective joint families agreed to relinquish all their right and title over the said properties allotted to Jamuna Prasad Jaiswal. Similarly, it was agreed that Jamuna Prasad Jaiswal on behalf of himself and other members of his family would relinquish all their right and title in the properties allotted to Satya Narayan Prasad Jaiswal, Shio Narayan Prasad Jaiswal and their families. The terms of the said family settlement of the properties were reduced to writing on 26.5.83 and the same was registered in the office of Sub-Registrar, Manipur on 31.5.83. In terms of the said family settlement, Jamuna Prasad Jaiswal, Satya Narayan Prasad Jaiswal, Shio Narayan Prasad Jaiswal and Premchand Prasad Jaiswal got their names recorded in the revenue records in respect of their shares allotted to them. As per the said family settlement, the suit property described in Schedule-C to the plaint which is also part of Schedule-B/1 to the plaint fell into the share of Jamuna Prasad Jaiswal and his family members and they became the absolute owners of the said suit property. It was agreed verbally between the parties at the time of said family settlement that SatyaNarayan Prasad Jaiswal, Shio Narayan Prasad Jaiswal and Prem Chand Prasad Jaiswal would vacate the suit property and shift to the properties allotted under the family settlement. Satya Narayan Prasad Jaiswal who along with his family members came to lmphal in the year 1982 for the purpose of settlement of family properties resided on the first floor by occupying two rooms of the building comprised in the suit property and also using another room on western side of the building as kitchen. The said two rooms and kitchen are described in Schedule-D to the plaint. Though Satya Narayan Prasad Jaiswal promised to vacate the said rooms described in Schedule-D to the plaint, he did not vacate the said rooms, Shio Narayan Prasad Jaiswal also occupied a room on the first floor of the building comprised in the suit property described in Schedule-E to the plaint and agreed to vacate the same but refused to do so. On these pleadings in the plaint, Jamuna Prasad Jaiswal has prayed for a decree for possession of the aforesaid rooms described in Schedule-D and Schedule-E to the plaint by eviction of Satya Narayan Prasad Jaiswal and Shio Narayan Prasad Jaiswal.

(3.) Defendant Nos. 1 and 2 contested the suit by filing two separate written statements raising the same pleas. Their case in the written statements is that after the death of Munilal Ram Jaiswal and his widow Janaki Devi, his daughter Tara Devi who is still alive has her right and interest in the joint family properties. Similarly, Rukmini Devi, daughter of late Mukhlal Ram Jaiswal has her right and interest in the coparcenary properties. But they are not parties to the family settlement which took place in May, 1983. The further case of the defendant Nos. 1 and 2 in the written statement is that prior to the family settlement of May, 1983 there has not been any partition amongst the parties to the suit nor any severance of the joint family, and hence Jamuna Prasad, Satya Narayan Prasad, Shio Narayan Prasad and Prem Chand Prasad could not be treated as Kartas of their respective families and could not bind the other coperceners belonging to their respective families by executing family settlement deed dated 26.5.83. Defendant Nos. 1 and 2 also took a plea in the written statements that the plaintiff was not the absolute owner of the suit property by virtue of the so called family settlement Deed dated 26.5.83 and that the plaintiff does not have the exclusive right of use and enjoyment of the suit property. Defendant Nos.l and 2 also pleaded that all the coparceners who had interest in the joint family properties were necessary parties to the suit, but were not impleaded as defendants. According to the case of the defendants 1 and 2, it was agreed between the plaintiff and the said defendants-1 and 2 that they would vacate the portion of the suit property occupied by them after a full and complete settlement and partition of coparcenary or joint family properties and there has not been full and complete settlement or partition of the joint family properties as yet they were not liable to vacate tbs suit property. The said defendants-1 and 2 have denied in the written statement that there was ever any verbal agreement between the parties that defendants-1 and 2 would vacate the suit property as alleged in the plaint. The said defendants-1 and 2 have further pleaded in their written statement that clause-6 of the Deed off family settlement dated 26.5.83 mentioned that any dispute and difference between the parties as respect interpretation thereof or any matter relating thereto has to be referred to arbitration and since the dispute raised in the suit is in respect of interpretation of the said Deed of family settlement and/or is a matter relating thereto, the suit does not lie without prior reference to arbitration. Defendant No.3 put in a separate written statement in which he supported the case of the plaintiff that it was verbally agreed between the parties that defendants-1 and 2 would vacate the suit property and shift to their respective properties allotted to them under the family settlement and stated that he is presently staying at Dimapur, Nagaland and he was never staying in the suit property and has made a prayer that the proceedings for eviction may be dropped as against him.