UMESH AGARWAL Vs. MAHESH AGARWAL

JUDGEMENT

(1.) SURVIVING plaintiffs in Title Suit No. 01/2009 on the files of learned Civil Judge, East Sikkim, who were appellants in Title Appeal Case No. 08/2011, have filed this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'CPC') impugning that the decision concurrently taken by the lower Appellate Court and the Trial Court on an application filed under Order XII Rule 6 of CPC by the defendants to non-suit them on the basis that the title suit filed by them was liable to be dismissed straightway on the basis of admission already made by them in a previous litigation. The facts will have to be adverted to briefly.

(2.) THE appellants will hereinafter be referred to as the surviving plaintiffs and the respondents will hereinafter be referred to as the defendants or by their names. The suit was instituted originally as Civil Suit No. 10/1994 by the surviving plaintiffs and also by one Bhaskaranand Agarwal, father of appellant No. 1 and respondent No. 1 in respect of 9 items of immovable properties described in Schedule - A to the plaint and another immovable property described in Schedule ­ B, which is in fact the first item described in Schedule ­ A itself. The suit was amended and the following are the reliefs sought for in the amended plaint:

(3.) THE case of the plaintiff is that all the properties including the Schedule ­ B property, which appears to be the most valuable amongst the immovable properties described in Schedule ­ A belong to a Hindu Undivided Joint Family in which the members presently are the three appellants and defendant Nos. 1 and 2. According to them, in the above Hindu Undivided Joint Family, no partition has so far taken place in respect of the immovable properties scheduled to the plaint. In this context they claim that all these properties were allotted to a registered partnership firm by name 'M/s Shree Mulchand and Sons' by the Government of Sikkim by an order of allotment dated 14.09.1944 which is produced in the case as Exhibit P-1. It is, therefore, further case that pursuant to a family arrangement entered into at Calcutta on 06.06.1968 between the then members of the Hindu Undivided Joint Family including late Bhaskaranand Agarwal, 11 items of immovable properties including the immovable properties which are scheduled to the plaint to the branch consisting of Bhaskaranand Agarwal and his two sons namely, the first defendant and the first plaintiff. Exhibit P-2 is copy of the above family arrangement. Thus, though both parties seem to be tracing their title to Exhibits P-1 and P-2, they are at issue as to whether the property continued to be joint property between them while the plaintiffs contend that the immovable properties continued to be their joint property of themselves and defendant No. 1 and 2, the contention of defendants is that pursuant to a process of partition which started in 1973 at the time when Bhaskaranand Agarwal was alive the entirety of their right, title and interest of the original partnership firm by name M/s Shree Mulchand and Sons, his business and properties at Mangan Bazar, at Dikchu and at Gangtok Bazaar including the properties described in Schedule ­ B were allotted exclusively and separately to the first defendant and, accordingly, a new firm was registered on 16.06.1979 under the same name Shree Mulchand and Sons under the sole proprietorship of the first defendant. It is contended by them that as the above registration was done after undergoing all formalities and public notice by virtue of the above registration the first defendant became the absolute owner in respect of the business of Shree Mulchand and Sons and the immovable properties described as items No. 1, 4, 5 and 6 in Schedule ­ A stood vested absolutely in defendant No. 1. It is also contended that the first defendant who thus became the absolute owner of the properties would convey his ownership over item No. 1 in Schedule ­ A (Schedule ­ B property) in favour of his wife, the third defendant Mridula by a Gift Deed dated 31.03.1989. It is contended that upon such acquisition of ownership by virtue of Gift Deed the 3rd defendant made an application for mutation of the properties covered by the Gift Deed, the properties now stand mutated in favour of the third defendant. It is also contended that under the above partition which commenced in 1973 properties described in some other items 2, 3 and 7 in Schedule-A were allotted to plaintiff No. 2 and that he is carrying on a separate business.