LAWS(PAT)-2006-2-57

BALDEO PRASAD YADAV Vs. KEDAR NATH YADAV

Decided On February 07, 2006
Baldeo Prasad Yadav Appellant
V/S
KEDAR NATH YADAV Respondents

JUDGEMENT

(1.) RE : I.A. No. 6315 of 2004 Appellants has field the application under consideration under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure (In short "C P C") for grant of ad interim injunction restraining respondent No. 1 from alienating, encumbering, leasing out or transferring the suit house in any manner or changing its physical feature during" the pendency of the appeal.

(2.) BRIEF facts of the case are that plaintiff/respondent No. 1 brought Title Partition Suit No. 328 of 2000 in the Court of Subordinate Judge I, Patna seeking a preliminary decree for partition of the suit house claiming 44.33 paise share. The case of plaintiff/respondent No. 1 was that his father Kheyali Prasad after the death of his father became the Karta of the joint family consisting of him and his two sons, namely, plaintiff/respondent No. 1 and defendant No. 1/appellant. The suit land was allotted to Kheyali Prasad Yadav by Improvement Trust under a registered deed of lease for ninety nine years in lieu of acquition of ancestral house and land of joint family by Improvement Trust for development of Rajendra Nagar residential area and a triple storeyed house was constructed over the suit land out of joint family fund and joint family of Kheyali Prasad Yadav has been coming in joint possession of the same. Kheyali Prasad Yadav died on 2.2.1972 in the state of jointness leaving behind his two sons, plaintiff/respondent No. 1, defendant No. 1/ appellant and a daughter, defendant No. 3/ respondent No. 2. Plaintiff/respondent No. 1 demanded partition which was refused therefore, he filed the suit. The suit was decreed and against the judgment and decree of Court below, defendant No. 1 has filed this appeal. The case of defendant No. 1/appel - lant is that late Bachu Yadav was the head and Karta of joint family of parties and joint family was possessed of ancestral house and some agricultural land and after the death of Bachu Yadav his only son Kheyali Prasad Yadav became the head and karta of family and State of Bihar acquired the ancestral house and agricultural land of joint family for which compensation was paid to Kheyali Prasad Yadav who purchased two kathas of land at Kankerbagh by two registered sale deeds and constructed a house over the same for residential purpose. Since this house was not sufficient for accommodation of entire family so on the request of Kheyali Prasad, State Government of Bihar allotted him a piece of land at Rajendra Nagar under a registered deed of lease dated 11.8.1961 over which Kheyaii Prasad Yadav constructed the suit house and because Kheyali Prasad Yadav became old and weak so plaintiff/respondent No. 1 being elder son was looking after the family affairs and was managing the property. Further case of defendant No. 1/appellant is that Kheyali Prasad Yadav had two houses at Kankerbagh and Rajendra Nagar and plaintiff/respondent No. 1 got Kankerbagh house and defendant No. 1/appellant was allotted Rajendra Nagar house and out of 90,000/ - cash available with Kheyali Prasad Yadav, plaintiff/respondent No. 1 got a sum of Rs. 60,000/ - on the plea that Kankerbagh house stood over a land slightly lesser in area than the land over which Rajendra Nagar house stood and defendant No. 1 got 30,000/ -. Thereafter, defendant No. 1/appellant constructed first floor and half of second floor of the house out of his own money and with the financial aid from his wife and friends and plaintiff/respondent No. 1 in dire need of money sold his Kankerbagh house and at his request, name of defendant No. 1/appellant was also given in the category of vendors. On further request of plaintiff, defendant No. 1 allowed him to live in Rajendra Nagar house for sometime till he was able to make alternative arrangement. Thereafter, defendant No. 1/appellant requested several times to plaintiff/respondent No. 1 to vacate the house, but he did not do so and instead of vacating the house filed suit for partition. The case of defendant No. 1/appellant is that the Court below has placed much reliance on 2 which is registered deed of sale by which Kankerbagh house was sold jointly by appellant and respondent No. 1 but the Court below failed to consider the contents of the sale deed in which the share of plaintiff was shown as one Katha nineteen dhurs and share of defendant No. 1 /appellant was shown only one dhur and had there been no partition, there was no need of giving description of shares of both the vendors. The plaintiff/respondent No. 1 has filed the counter -affidavit opposing the prayer of defendant No. 1/appellant on the ground that respondent No. 1. is a widower aged about 78 years and residing with his son -in -law and daughter at Jamshedpur and half portion of first floor and second floor of the suit house is in his possession and ground floor and half portion of first floor is in possession of the appellant and appellant is running shops and a boys hostel and getting a sum of Rs. 22,000/ - as rent and appellants are not allowing respondent No. 1 to enter the suit house. His further case is that in Exhibit -E/ 2 which is the certified copy of sale deed, there is no recital that defendant No. 1/appellant was transferring only one dhur and plaintiff/respondent No. 1 was transferring one katha nineteen dhurs and also there is no recital that partition between appellant and respondent had already taken place.

(3.) ADMITTEDLY , defendant No. 1/appellant and plaintiff/respondent No. 1 are full brothers. The suit house belong to their father. In a suit filed for partition by one of them, namely, plaintiff/respondent No. 1 the suit has been decreed.