GULAB Vs. LAL MOHAMMAD

JUDGEMENT

(1.) The first respondent in this second appeal had filed a suit in the court of the Judicial Superintendent, Jodhpur City for partition and separate possession of his share in a house situated in the city of Jodhpur and described in para 2 of the plaint against the three appellants, the remaining six respondents and one Husain who has not been made a party to this appeal. The table given below shows the relationship between the parties as alleged by the plaintiff :-

(2.) Excepting the adoption of Allahrakh by Ajim, which was disputed by the appellants, the above table is admitted by the parties.

(3.) The plaintiff's case was that the house in dispute was purchased by his great grandfather Kasam and that the parties to the suit and before them their forefathers had been living in it as joint owners since its purchase. It was alleged by the plaintiff that at the time of its purchase the house in dispute contained an Ora, a Kachcha shed, a Kachcha Barsali and Chabutris while the additions were made jointly by Ghisu, Azim and Azim's sons. The plaintiff claimed ⅛th of the property as his share and added that if Allahrakh's adoption to Azim was not upheld he was entitled to ⅕th share instead of ⅛. The suit was contested only by the appellants Gulab, Musa and Usman while the respondents Nos. 2 and 3 and Husain admitted the plaintiff's claim and prayed for a decree for partition and possession of their share also and the respondents Nos. 4 to 7 allowed the suit to proceed against their exparte. The appellants resisted the suit mainly on the ground that certain apartments viz., Barsali, a room, a Dalan, a Chubutri and a latrine were built by their father Allahbeli alone and that the same were in their exclusive possession and therefore, not subject to partition. They, further, claimed the share of Anu and Bhura who, they alleged, had transferred to them their right and title in the ancestral house in Samwat 1954 on the Krishna 14th of Ashadh. It was also contended by the appellants that the defendants-respondents, Ilahibux, Nabu, Ramzan and Kasam, sons of Allahrakh had no claim to any share in the suit property. The pleas of limitation, adverse possession and non-joinder of a necessary party viz., Noormohammad S/O Bhura and grandson of Subrati were also taken to the effect that they had spent a sum of Rs. 2000/- on repairs of the house, marriages of Khudabux, Husain, Mohammad and the plaintiff's daughter and maintenance and funeral etc. of their grandmother and that the plaintiff could not claim partition without paying that amount. The appellants also denied the plaintiff's allegation that the parties constituted a joint family of which Allahbeli was the manager. In his replication, the plaintiff did not admit the transfer