GOPI CHAND Vs. BHONRI LAL

JUDGEMENT

(1.) THIS appeal by the appellant-defendant No. 2 has been filed against the judgment dated 18. 12. 1999 whereby the learned District Judge, Jaipur District, Jaipur passed a preliminary decree of partition of one joint shop.

(2.) THE relevant facts for disposal of this appeal are that the plaintiff-respondent No. 1 filed a civil suit for partition of one shop against his two brothers Gyarsi Lal and Gopi Chand with the averments that the suit shop as described in para 1 of the plaint was jointly purchased by all the three brothers vide a registered sale deed dated 17. 12. 1969 for a consideration of Rs. 3,901/ -. THEreafter, the shop was repaired with constructions over first and second floor. THE plaintiff asked the defendants for partition of the shop on 20. 2. 1993 and also served a notice dated 22. 2. 1993 by registered post but with no result. Hence the suit with prayer for 1/3rd portion of the shop.

(3.) IT is not in dispute that registered sale deed Ex. A1 dated 17. 12. 1969 is in the name of all the three brothers. According to the statement of the plaintiff Sh. Bhonri Lal this shop was jointly purchased by all the three brothers and all of them got the shops repaired with new constructions. In cross-examination, he admitted this fact that stamps of Ex. A1 were purchased in the name of the appellant-defendant and it was also admitted that he did not file any bills with regard to expenses in construction over the shop and that the appellant-defendant was carrying on his business in the suit shop. He pleaded ignorance about the facts that light and water connections in the shop are in the name of the appellant-defendant. IT was also admitted by him that he was eldest brother and the defendant-appellant had faith in him but he denied the suggestion that when their brother Birdhi Chand was separated, all of them started living separately. P. W. 3 Gopal-son-in-law of the plaintiff and P. W. 4 Hari Narayan are the attesting witnesses of the sale deed Ex. A1. While supporting P. W. 1, they stated that this shop was jointly purchased by all the three brothers P. W. 2 Sh. Ganga Ram supported the plaintiff's statement with regard to repair and construction of the shop by all the three brothers. The defendant-appellant Sh. Gopi Chand of course stated before the trial court that a partition took place between them-all the four brothers in Samwat 2025 and in partition a sum of Rs. 4,000/- was given to him as his share and this shop was purchased by him out of this money. He made the payment of the price of the shop to Sh. Baksh and since the purchase he is occupying this shop by carrying on his business in the suit shop. D. W. 2 another defendant Sh. Gyarsi Lal has supported the plaintiff's case. D. W. 3 Sh. Ram Gopal, D. W. 4 Sh. Ganga Ram and D. W. 5 Sh. Sanwarmal stated that this shop is in possession of the defendant Sh. Gopi Chand for last about 30 years and it was Gopi Chand who got the shop repaired with new constructions over it.