MADAN LAL AND ORS. Vs. ROSHAN LAL

JUDGEMENT

(1.) PETITIONERS /defendants have filed this revision petition to challenge the impugned order dated 13th of February 2015 passed by the Addl. District Judge No. 5, Jodhpur Metropolitan, Jodhpur (for short, 'learned Trial Court') whereby the learned trial Court has rejected their application under Order VII Rule 11 read with Section 151 C.P.C. in a suit for partition and perpetual injunction laid by the respondent -plaintiff.

(2.) SUCCINCTLY stated, the facts of the case are that respondent -plaintiff instituted a civil suit for partition and perpetual injunction against the petitioner inter -alia on the ground that a joint family property of the parties is situated at Maliyon ki Gali, Opposite Udaimandir Police Station, Jodhpur. The requisite neighborhood of the suit property and total area is incorporated in the plaint. It is mentioned in the plaint that a land measuring 685.5 Jodhpuri Gaj is allotted by the erstwhile princely State, Jodhpur to one Ashu s/o. Sukhdev and vide File No. 485 dated 04.08.1908 the Superintendent Sadar, Hawala Khas, Raj Marwar, Jodhpur issued Patta of the land in the name of Ashu on 01.01.1909. After issuance of Patta, Shri Bhoridas alias Boridas Kachhawaha, Shri Sukhdev and Shri Ashuji died but Ashuji is surviving by three sons; namely Ramchander, Ganesh and Motilal. Subsequently, Shri Ganesh and Motilal also passed away and Ramchandra remained the only surviving issue of Ashuji. Shri Ramchandra took his last breath on 08.12.1998 and his wife Radhadevi was predeceased at the time of his death. On account of death of Ramchandra, the property is inherited by his surviving legal representatives, i.e., Shri Madanlal, Shri Babulal and four daughters, namely, Smt. Anop, Smt. Gulab, Smt. Santosh and Smt. Suraj. The complete family tree of Ramchandra is also mentioned in the plaint. In the plaint, it is also averred that Madan Lal and Babulal mutually agreed for partition of the property and a written statement is executed for partition, which was duly registered and thereupon both of them occupied their respective share in the property. As per respondent -plaintiff, since then he alongwith defendant is in possession as joint owner of the suit property, which is a joint Hindu family property. It is also alleged in the plaint that the respondent -plaintiff and the other defendants raised construction on the joint family property after obtaining due permission from Municipal Council, Udaipur in the year 2005, and three storied building was constructed having six flats, in which on 3rd floor, in Flat No. 6 situated at the backside, respondent -plaintiff is residing as owner of the joint family property, and rest of the flats are occupied by other defendants. Pleading specifically in the plaint that the entire property is a joint family property, the respondent -plaintiff has claimed its partition by demarcating his share by metes and bounds. It is also pleaded in the plaint that the petitioners -defendants in unison are out and out to dispossess him from the joint family property and that compelled him to lay a criminal complaint against them. Highlighting the conduct of the petitioners of hurling repeated facts to dispossess him, the respondent -plaintiff has also prayed for the relief of perpetual injunction. The respondent -plaintiff has further pleaded in the plaint that he came to know through reliable sources that defendants are likely to alienate the joint family property, therefore, it has become imminent for him to seek partition of the property by metes and bounds. Asserting with emphasis about his possession on the disputed property, the respondent -plaintiff has also made endeavor to show cause of action for launching of the litigation, with the prayer for partition and perpetual injunction.

(3.) ON behalf of respondent -plaintiff, reply to the application is submitted refuting all the averments. It is pleaded in the return by the respondent -plaintiff that his possession in the disputed property is not akin to that of a licencee but in the capacity of a coparcener. The fact regarding illegal possession on part of the suit property is also denied by the respondent -plaintiff. Pleading specifically in the reply that suit property is not self acquired property of the first petitioner and therefore he is not the absolute owner of the property, the respondent -plaintiff has asserted with emphasis that as coparcener he is well within his rights to protect his possession by getting a decree for perpetual injunction.