UMA SHARMA Vs. RAM PRATAP

JUDGEMENT

(1.) DISMISSAL by the trial court i.e. Additional District Judge No.6, Jaipur City, Jaipur, vide its judgment and decree dated 16 -03 -1992, of a suit for declaration and permanent injunction or in the alternative for partition as laid by the plaintiff, Vishambhar Dayal (since deceased now represented through his LRs), has entailed this civil first appeal under Section 96 CPC.

(2.) THE facts of the case are that the plaintiff -appellant (hereinafter 'the plaintiff') laid the aforementioned suit stating that his father Prahlad Ram Sharma expired on or about 24 -04 -1958 at Kota where he was residing at the relevant time with his elder son i.e. the defendant No.1 in the suit one Ram Pratap Sharma - now respondent No.1 in this appeal (hereinafter 'the defendant No.1, also now dead and represented by his LRs.). It was stated that aside of the plaintiff and the defendant No.1, the deceased Prahlad Ram Sharma also had two other sons i.e. Banarasi Das Sharma and Hari Ram Sharma, arrayed as defendant Nos.2 and 3 in the suit. The case of the plaintiff was that the deceased Prahlad Ram Sharma, resident of village Gadhbasai, Tehsil Thanagazi, District Alwar was a well -known astrologer who had a booming practice in astrology (Panditai) at Ferozpur in Punjab State prior to the partition of India in 1947 and had shifted thereafter to Alwar in Rajasthan. It was stated that at the time of his death, Prahlad Ram Sharma left behind immovable properties in the form of agricultural land at village Thanagazi and a house in Alwar city. Further the deceased was stated to have also left behind a sum of Rs.10,000/ - in his savings bank account No.618 (hereinafter 'bank account') with the Punjab National Bank, Alwar Branch. It was stated that the plaintiff was at the relevant time working as a Sub Divisional Officer at Jhalawar, the defendant No.1 Ram Pratap Sharma working as Conservator of Forest, the defendant No.2 Banarasi Das Sharma as Mines Foremen at Bhilwara and defendant No.3 Hari Ram Sharma as Commercial Tax Inspector at Alwar. Further the case set up in the suit was that the defendant No.1 being the oldest son of late Prahlad Ram Sharma took over as karta (manager) of Hindu United family following Prahlad Ram Ji's death on 24 -04 -1958 and came into management of the HUF's movable and immovable properties. The Additional Collector issued a succession certificate in the name of the four sons in the format provided by the Punjab National Bank, Alwar Branch whereupon the entire amount allegedly in the Prahlad Ram Sharma's saving bank account was obtained by the defendant No.1 and kept in his control and custody. It was stated that during the life time, late Prahlad Ram Sharma was desirous that all his four sons live together in Jaipur for which purpose a large plot was to be obtained and houses constructed thereon by each of his sons thereon. And in the context of the aforesaid desire of late Prahlad Ram Sharma, plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur admeasuring 4,833 sq. yard was purchased in the name of defendant No.1 by virtue of his being the oldest of the sons of late Prahlad Ram Sharma. The said plot was stated to have been allotted in March, 1959 for a consideration of Rs.8,785.99/ -. The amount allegedly provided from the monies particularly the cash left behind by late Prahlad Ram Sharma in his saving bank account with PNB, Alwar Branch. It was stated that even though the plot was thus standing in the name of defendant No.1 alone, it was only indicative of the absolute faith and trust of the other brothers in him by virtue of his being their oldest brother. It was then stated that sometime in December, 1959, the said plot was subjected to an oral partition allegedly as per the map annexed to the plaint and while the portion marked ABCD in the map aforesaid - Front Western portion came to the share of defendant No.1 Ram Pratap Sharma, the portion marked ABEF - Front Eastern portion came to the plaintiff's share. Similarly the portion marked AFGH was stated to be set a part under the oral partition in favour of defendant No.2 Banarasi Das Sharma, and the portion marked as ABIH for the defendant No.3 Hari Ram Sharma. The four brothers were stated to have thus come ownership and possession of their respective portions of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur albeit formally alloted in the name of defendant No.1 Ram Pratap Sharma. According to the plaintiff, thereafter between 1959 to 1968 from his own funds, he proceeded to construct a residential house in the portion marked ABEF in the map annexed to the plaint - Front Eastern portion - which was thus in his ownership and possession. The portion marked ABEF, sometime in the month of July, 1962, became livable, whereupon the plaintiff commenced residing therein with his family and had so continued without interruption as owner. According to the plaintiff, defendant No.1 on his part having constructed his own house over the Front Western portion of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur came to reside therein commencing 1965. Defendant Nos.2 and 3 however were stated to have not undertaken any construction over their alleged portions in plot No.C -15 under the purported oral partition. Stating that in spite of being the owner of the portion marked ABEF - Front Eastern portion - (as per the map annexed to the plaint) in plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur, the plaintiff misled by his sons and others was however denying the ownership of the plaintiff over the ABEF portion of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur and threatening to dispossess him therefrom. It was submitted that prior to the immediate threats of dispossession and denial of the ownership of the plaintiff, in the year 1963 also there had been a disagreement between the ladies of the house resulting in the plaintiff demanding the oral partition being formalized by a writing. Thereupon vide letter dated 06.01.1964, the defendant No.1 was alleged to have mollified the plaintiff assuring him that no injustice would be occasioned to him and he would act as a caring and just older brother. This letter under the hand of the defendant No.1 was propped as an admission of the alleged oral partition of December, 1959. Apprehensive of yet being dispossessed from the mapped ABEF portion of plot No.C -15 in spite of ownership claimed thereon, it was prayed in the suit that a declaration of the plaintiff's ownership of ABEF portion of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur as per map annexed to the plaint be made and the defendant No.1 be restrained by way of a permanent injunction from interfering with the plaintiff's peaceful enjoyment of the suit property. Alternatively it was prayed that plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur being the joint property of the plaintiff and defendant Nos.1, 2 and 3, be appropriately partitioned in equal measure and a decree accordingly drawn.

(3.) REJOINDER to the written statement was filed wherein the plaintiff admitted that he had been the defendant's tenant but upto 1968 not in the house built on the Front Eastern portion of plot No.C -15 - but in the Western Front portion. Thereafter he built his own house over the Front Eastern portion and came to occupy it as owner. This assertion by the plaintiff was despite a contra initial stand taken in the plaint that he was from the very beginning, commencing 1962 residing in the eastern portion of plot No.C -15. The defendant No.2 in his written statement supported the case of the plaintiff. The defendant No.3 however remained ex -parte.