SUDESH KUMAR JAIN Vs. VIJAY KUMAR AND OTHERS

JUDGEMENT

(1.) The conspectus of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Vijay Kumar son of late Beni Parshad Jain respondent No.1-plaintiff (for brevity "the plaintiff") filed the suit against his brother Sudesh Kumar Jain appellant-defendant No.1 and other defendants (for short "the defendants") seeking a decree for possession by way of partition of his 1/7th share in the properties in dispute, inter-alia pleading that Beni Parshad, father of the parties, was owner and in possession of the suit properties. In the wake of his death on 30.10.1975, they became owners and in possession of the properties in dispute in a natural succession in equal share to the extent of 1/7th share each. According to the plaintiff that the properties have not been partitioned and he had been getting less benefit than his actual share. He requested the defendants several times to get the suit properties partitioned by metes and bounds, but they always avoided it and ultimately refused to partition the same. It necessitated the plaintiff to file the present suit. On the basis of aforesaid allegations, the plaintiff filed the suit against the defendants for a decree of possession by way of partition of the properties in question to the extent of 1/7th share.

(2.) The defendants contested the suit. Defendant No.1 filed his separate written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit; Court fees, limitation, jurisdiction of the civil Court, cause of action and locus standi of the plaintiff. The case set up by the contesting defendant No.1, in brief in so far as relevant, was that the property situated at Delhi was purchased, constructed and renovated by himself and he has been in its possession since 1960 as owner. After the death of Beni Parshad, this property was got mutated in the name of Smt.Leela Wati Jain, mother of the parties and she executed a Will in favour of defendant No.1. In this manner, he claimed the exclusive ownership of the property, situated at Delhi on the basis of Will. He has also set up a plea of oral/private partition. The plaintiff was claimed to have received Rs. 12,000/- in lieu of his share and as such he had no right to file the present suit. Defendant Nos.2 to 4 admitted the claim of the plaintiff and did not file any written statement. However, defendant Nos.5 and 6 toed the line of pleadings as contained in the written statement filed by contesting defendant No.1. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

(3.) Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiff filed the replications. In the wake of pleadings of the parties, the trial Court framed the essential issues for proper adjudication of the case.