A^< OF AT DB; HoR^bSe Shrl Justlce Dhlrendra anrt Nori'ble Shrl Justice Flrst No 199 of 2004 Smt. Versus FOR JUDGE Stiri Dhlreiidra Mishra. J. ^ 9 ^s^_. Sd/- DHIBENDRA MISHRA Judge Postfor^-0^-2010 Sd/- DHHUENDRA MISHRA Judge OF CHNATTISGARH AT BSLASPUR DJvlsiQiiBeiich: Hon'ble Shri Justics Dhlrendra Hon'bie Shri Justlce Prasharst Kumar Flrst No. 198 Appeltants Def.No. 1 to6 Respondents Raintiff Smt. and Sanjay and others. Shri Ravish Verma, counsel for the Shri Prafu?? Bharat, counset for respondents No> 1 to 4. First Appeal under SectiQn 96 of Civli Procedure Code JUD6MENT j ^oZ. o 4.2010) Per Prashant Kumar Mishra. J. ^, in thls first appeal un<ler 96 of C.P.C., ss to the judgment and dated 19-(%-2(X)4 by the first Add'rtional D'sstrict Judge, In Clvli Suit No. 9-A/02 decreelng the ptaintlff's/respop.dent No. 1 sult for part'rtlon and possesslon. (2) According to the pta'sntift he No. 7 to 9 are the legal heirs of Bhagwandeen and No. 1 to 6 are the heirs of Devldeen. The and Devldeen were two sons of Ramashankar Bajpayee. The between the partles to the sutt can be by the family tree:- .^^^^ /"y' ^' w i. i... ^^1^-;.. 'A 1 ^y ^.^ —' Ramashankar Bajpavee A. [ i Devkibai (widow) Diedon 14-5-1982 Bh^vvandeen (Son) Died on 15-8-1988 ^ Devjdeen (Son) Died on 21-12-2000 i 1 1 i 1 SusNlsbsl Sanjay Sursl ^ieels Wtdow Sm Son Dau^t Df- Pfff. Df- Df. 7 89 1 i t 1 ^ ^ Knshns Vinod Vtkas Ra^sh Leena Blna Widow Son Son Son Dsi^. Dsug. Df. Df. Df. Df- Df. Df. 1 23 456 (3) The suit pertains to partition of anoestral house situated at Azad Nagar, Sahgal Gall, Municlpal Ward No. 18, Bllaspur. It was stated in the ptaint that the Sand was entered In ise name of plalntiffs grand mother Devklbal who had executed an yn-registered wll! on 18-09-1979 in favour of pialntiffs Bhagwarsdeen. Plalntlff's father had Instltuted Civll Suit No. 16-A/93 In the Court of VS A.DJ. Bliaspur, however after hte death during the pendency of the suit the plaintiff and defendants No. 7 to 9 were arrayed as the heirs of Bhagwandeen. Tte su'rt was on (%-08-1^4 hokling that the suit property was pyrchased in the of Devkibai from the tncome of the joint famlSy and thus Devklbal was not entltled to bequeath the property to BhagwancSeen. The sult was thus dismsssed. Fsrst appeal by the piaintiff and defendant Nos. 7 to 9 to challenge the decree was vflthdrawan on 20-03-2001. (4) It was further by the plalntiff that the defendants No.1 to 5 are In possession over some part of the property arrf on the .3- remainlng part the tenants are 'm from whom the defendants No. 1 to 5 are receiving rerst though they are not entitled to receive the rent exctusively. It was further cSalmed that Bhagwandeen and Devsdeen had ^ share each In the property and at present ptaintlff has 12.5% share atong with defendants No. 7 to 9 who a{so have 12.5% share each In the house. The remalnlng 50% share belongs to the ctefendante No. 1to 6. The pteintlff notice to the defendants No. 1 to 6 partltion, however the demand was not accepted the present sult for partition, possession and mesne proflt @ %)QO/- per month has been preferred. (5) The defendants No. 1 to 4 submitted their josnt wrltten statement and denled the plaint averments. Accordlng to the defendants the property te not the ancestrat property anci that IR vlew of the dismlssal of the eariier sult whereln the plaintiff and defendants No. 7 to 9 were party, the pressnt syit Is not malntalnable. They claimed excluslve ownershlp and title to the suit property ors their ownjjght as well as on the ground of adverse possesston. (6) The defendants No. 7 to 9 supported the plalntlff's suft and ctaimed that they are entltied for % each in the ^ share of Bhagwandeen In the sult house. Tlw triai Court framed No. 1 as to the nature of property and recorded a finding that the suit house 'ss the joint famlSy property. Wh'ste answerlng No. 2 & 3 I the trial Court heid that the plalntlff as weli as the clefendants No. 7 ^^f^ \1. I. 'l^ ^1^^/" ''^assss'"' •^- to 9 are for 12.5% each, the 50% the of defendants No. 1 to 6. Clalm r^arding proftt as No. 4 has declded agalnst the plalntift whereas the of prescriptteri of tttte by the No. 1 to 6, No. 6. The triat Court, while No. 5, has that the suit Js not under the principle of resju^cata. (7) Counsei for the appellant has that In vlew of the dismsssal of the sy'rt after of the ptelntjff and No. 7 to 9 were party, the sylt Is not maintalnaMe and as suoh the trial Court dismsssed the sult. Accordlng to tltle by and the sutt has wrongiy (8) Per contra the for the NG. 1 to 4 has the and by the trial Court by that the of actlon, the to the sult and the nature of claim In both the are differerst, the of resjudscata are not applicabte. (9) The eartier suit Civll Sult No. 16-A/93 was by Bhagwandeen Bajpayee. !n that su'rt cteimed that the sult house by Devklbal on 17-02-1944 and construction by spencilng amount and as sych it I to Devklbai who has a wllt Irt of on 118-09-1979 and thus of on 14-05-1982 he has ^^'^^%'. ^i J ^.^..^/ ^s^ ^ -3- become the soie owner. He ctaimed a decree for deciaration, possession and damages. The suit dlsmlssed after recording a flndsng that though the sutt house was purchased In the name of Devkibal however in vlew of the evldenoe on record ft Is tound that ft was in fact purchased by Ramashankar Bajpayee In the name of his wlfe Devkibai and thys Dev^bai atone was ncA the o^mer of the property. Execution of wll! In favour of Bhagwandeen was oot found to be proved. 51 was also founcl that, atter death of Rannashankar Bajpayee, Devideen wcmld be one of the successor, therefore his possesslon In the suit property Is rest fflegal. tt was Implledty held that Devtdeen as well as Bhagwandeen oo-owners of the property after death of their father Ramashankar. (10) !n the present suit the plalntiff who is son of has clalmed 12.5% share In the sult house along with defendants No. 7 to 9 constttuting 50% of the share, ths 50% having gone to the defenciants No. 1 to 6. The questlon of partltion and aiiotment of share to the persons entitleci for In the never sn issue in the ^sriier sult, therefore the declslon m the eariler sult shail not operate as resjudtQata In the su'rt. It Is to be seen that the eartier suit was t'sSed by Bhagwandeen claiming hls t'rtSe and the said suit was oontlnued by the helrs of Bhagwandeen and they have not olalmeci any further right and entsttement of part'rtion In themselves, therefore the dlsmlssal of the earlier sutt shall not operate as resjudicata m %he present sult 'tT. is preferred by the plalntlff to claim partltlon through hte father I' % s ..I'1 J (^ "6- Bhagwandeen after it found that as well as Devideen are jolntiy to to the jolnt famliy property. (11) As the plea of by the defendants No. 1 to 6 / appellants, sufftee It te to say that in a property jolntly owned by the the of one co- sharer is on behalf of the co-sterers and therefore If one of the famiSy Is 'm of the joint famjty property hls not become adverse to the other members of the joint famlly. The trlal Court has not committed any m the of tte appellants/defendants r^ardlng adverse (12) Since st is oot In that the plalRtlft and No. 7 to 9 are son, wldow and daughters of and the defendants No. 1 to 6 are widcM', and respectlvety of Devideen, the allotment of by the tria! Court In the {mpugnecl judgment and to be just, and proper. (13) There is no substance In thls whfch and is dlsmissed. The judgment ahd decree by the trlal Court Is conflrmed. (14) There be no as to costs. (15) A decree be drawn up accordingly. Sd/- DfflRENDRA MISHRA Judge Sd//- Prashant Kumar Mishra Judge K