POONAM JAIN Vs. GAURI SHANKER JAIN

JUDGEMENT

(1.) This appeal is filed under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment dated 28.08.2013 and the decree dated 29.08.2013 by which the Title Suit No.16 of 1978, filed by the plaintiffs (appellants herein) has been dismissed.

(2.) A plaint was filed by the plaintiffs, which was registered as Title Suit No.16 of 1978, praying for a decree for partition of the properties mentioned in various schedules of the plaint and an order for separate possession. A decree for mesne profit was also prayed for with a direction for taking up of accounts.

(3.) The plaintiffs stated in their plaint that the parties are members of Joint Hindu Undivided Family and Khemraj Jain is the common ancestor. The parties are governed by Mitakshara School of Hindu Law. As per plaint, plaintiff Manilal Jain and Defendant Madan Lal Jain are brothers constituting HUF. The case of the plaintiffs is that parent business of Hindu Undivided Family is running in the name and style of M/s. Khemraj Mandan Lal dealing in cement and salt etc. and it was being operated at Rajmahal. In addition to above, the firm is doing the business in several branches at Barharwa, Pakur, Sahibganj, Amrapara, Dhuliyan, Malda, Kolkatta, Chakai etc. They also deal in business of transport having several tractors, cars which were detailed in Schedule C of plaint. This family owns agricultural land and builds several building whose description is in Schedule D and E. This family has also several Bank accounts in different banks which have been detailed in Schedule F and jewelery, utensils, carpet and furniture in Schedule G. It is further case of plaintiffs that plaintiff No.1 used to remain out in connection with management of different business, litigations including income tax and sales tax and taking benefit of his engagement, defendants began to make personal capital out of the income of joint family funds and defendants by using the joint fund were making their separate business due to which already existing business of Petrol Pump, kerosene oil were closed due to mismanagement by defendants and thus relationship between plaintiff No.1 and defendant No.1 became strained and the plaintiff No.1 was not given access to books of accounts. Then he demanded partition in the year 1976 at the occasion of Ramnavami and after evading for a considerable period the defendant No.1 entered into an agreement with plaintiff No.1 on 27.07.1976 agreeing to complete the account of entire business for effecting the partition but on one pretext or other it was not done and in the meantime the defendants continued to make wrongful gain from the business of family. It is further case that ultimately plaintiff No.1 and defendant No.1 agreed to partition by referring the matter to sole arbitrator Sri Baluram Dhaliwal who is husband of their sister and accordingly an arbitration agreement dated 19.09.1976 was drawn up but defendant did not cooperate with the arbitrator and ultimately arbitrator gave up the arbitration proceeding. The plaintiffs, then finding no option, filed the suit. As per plaintiff, the cause of action arose for suit on 27.07.1976 and on several dates when demand for partition was made. The plaintiffs sought (a) a decree for partition by metes and bounds of properties mentioned in the various schedules and separate possession; (b) a decree for mesne profits with a direction for taking of accounts; (c) cost of the suit; (d) any other relief or reliefs the Court may deem fit and proper. The schedule was later on amended by deleting some of the properties.