JHABARMAL Vs. HARDEVA RAM AND ORS.

JUDGEMENT

(1.) THESE two appeals arise out of same suit which was filed by plaintiff -respondent Hardeva Ram for partition and perpetual injunction against defendant -appellant. Learned Additional District Judge, Sikar, decreed the suit for partition and directed preparation of decree for partition. Appeal No. 69/1987 has been preferred against preliminary decree whereas Appeal No. 70/1988 has been filed against final decree for partition. Plaintiff Hardevaram filed aforementioned suit on 21.09.1977, inter -alia, with the pleadings that his father Lakharam had three sons, namely, Jeevanram, Surajmal and plaintiff Hardevaram. Defendant no. 1 Jhabarmal, defendant no. 4 Lalchand and defendant no. 5 Sitaram are sons of plaintiff Hardevaram. After death of plaintiff's father Lakharam, all the three sons lived jointly and Jeevanram, being the eldest son of Lakharam, was 'karta' of the joint family. Plaintiff Hardevaram and defendant no. 3 Surajmal went to Mumbai to earn their livelihood, but their family stayed back in their native in joint Hindu family. Entire properties left by their father Lakharam, were jointly owned by all of them. The first property was residential house in Plot No. 218 situated opposite Collectorate at Sikar, on national highway no. 11, second property was residential house situated at village Sabalpura and third property was agriculture land in village Sabalpura bearing khasra no. 258 measuring 15 bigha 6 biswa, and khasra no. 399 measuring 1 bigha 9 biswa and khasra no. 504 measuring 9 bigha of land. The plaintiff used to send all his earnings to his brother Jeevanram at Sikar. Jeevanram died on 28.12.1975. He was issueless. His widow had died during his lifetime. Thus Hardevaram and Surajmal were the co -sharers in all the above -mentioned properties. However, defendant no. 1 Jhabarmal, illegally claimed himself as adopted son of Jeevanram and started receiving rent of the shops in the property opposite Collectorate at Sikar from defendants no. 9 to 14, who were tenants therein. Surajmal, relying on a sale -deed executed by Jeevanram in his favour on 03.09.1973, started claiming himself as the absolute owner of the property at Sikar. Jeevanram had no right to sell the property of the joint family in this way. Plaintiff Hardeva Ram came to know about the sale -deed dated 03.09.1973, in May 1977. It was prayed that all these properties should be declared joint family properties and the said sale -deed be declared void. Defendant no. 1 Jhabarmal, taking advantage of fact that he is educated, was trying to get the agriculture land mutated in his name and also by depositing land and building tax with the Municipality, Sikar, he is trying to get the properties of the joint family, recorded in his own name. Suit for injunction and partition was filed on that basis. The plaintiff and the defendant be declared entitled to get half of the property each.

(2.) DEFENDANT -appellant Jhabarmal filed his written statement and contended that entire properties were partitioned even during lifetime of Lakharam. Jeevanram, Surajmal and Hardevaram were residing separately. Jeevanram stayed with defendant Jhabarmal in the house at Sikar since 1955. Jeevanram took defendant Jhabarmal in adoption on 28.03.1950 and since then Jhabarmal stayed with him till his death. The house at Sikar and the agriculture land of khasra no. 504 measuring 9 bigha at Sabalpura were self -acquired property of Jeevanram, and after his death, defendant Jhabarmal is in occupation of the same as the owner, being his adopted son. As far as residential house at Sabalpura is concerned, it was divided into three parts amongst three brothers during lifetime of Lakharam. However, the agriculture land of Khasra no. 258 and 399 continued to be the joint properties in which he too has 1/3rd share.

(3.) LEARNED trial court on the basis of pleadings of the parties, framed following issues: -