RAM CHANDER Vs. JUGAL KISHORE

JUDGEMENT

(1.) This appeal has been filed under Order 39, Rule 1(r), C.P.C. against the order of the learned District Judge, Bikaner dated Sept. 1, 1990 by which plaintiff-appellants' application moved under Order 39, Rules 1 and 2, C.P.C. has been dismissed. The facts of the case giving rise to this appeal may be summarised thus.

(2.) The plaintiff-appellants filed a suit for rendition of accounts and division of income arising from the well, popularly known as Budhrasar, situated in village Chandasar (Gajner) with the averments, in short as follows. The well was constructed by the ancestors of the parties Shri Budherji in Smvt. 1850. Previously, it was being managed and the account of its income was being maintained by Manoharlal and the plaintiff Dau Dayal. An account was opened in the Bank by them. Manoharlal died on 17/06/1988. Thereafter, the well is being managed and account is being maintained by the defendants Nos. 1 to 4. They are not paying their (plaintiffs') share. Along with the plaint, an application under Order 40, Rule 1, C.P.C. was moved. It was seriously opposed by the defendants. The learned District Judge dismissed it by his order dated 13/07/1990. Thereafter, the plaintiffs moved another application under Order 39, Rules 1 and 2, C.P.C. The defendants filed their reply, seriously opposing it. It has also been dismissed by the learned District Judge by his order under challenge.

(3.) It has been contended by the learned counsel for the plaintiff-appellants that the learned District Judge did not at all consider the statement of the defendant No. 1 Jugal Kishore recorded in Suit No. 70/ 88 -Paliwal Samaj v. State on 10/04/1991 wherein he clearly admitted that the plaintiffs Ram Chander and Dau Dayal are entitled to get one half income of the well. He also contended, that the learned District Judge seriously erred to hold that the previous Suit No. 70/ 88 was of different nature, it was filed by Mundha family and the claim put forward by the plaintiffs in the present suit is quite different than put forward in the said Suit No. 70/ 88. He also contended that the learned District Judge seriously erred in dismissing the plaintiffs' applications moved under Order 40, Rule 1 and Order 39, Rules 1 and 2, C.P.C. despite the fact that the defendants denied their possession and use of the suit well in their replies. He lastly contended that the learned District Judge did not at all consider the various documents including the photostat copy of the agreement, letter, cheque book and bank account which strongly corroborate the plaintiffs' case.