RAM KISHAN AGARWALA Vs. RAMAWATAR AGARWALLA

JUDGEMENT

(1.) BOTH these appeals have been filed by the defendants in two separate sets against a common judgment. First Appeal No. 61 of 1996 by the appellant Ram Kishan Agarwala (defendant No. 2) has been filed against the judgment dated 4.1.1996 and 19.11996 passed by the Sub Judge 2nd Dhanbad in Title (Partition) Suit No. 44 of 1994 whereby the suit was decreed in favour of the plaintiff respondents and against the defendants 1 to 4, 5 to 7 and 13 to 14 on contest and without contest against the other defendants declaring the plaintiffs' 1/4th share in the properties mentioned in items no 1 to 4 of the schedule to the plaint. First Appeal No. 63 of 1996R has been filed by another set of defendants against the same judgment and decree of the leaned court below. A cross objection in this appeal has been filed under Order 41 Rule 22 of the Code of Civil Procedure by the plaintiffs/respondents against part of the impugned judgment whereby the plaintiffs' claim for partition of items 5 to 9 of the properties described in the schedule to the plaint was refused.

(2.) THE suit was filed by the plaintiff -respondents against the appellants/defendants for a preliminary decree for partition of the suit properties described in the plaint, according to the shares of the parties and for carving out separate portions in respect of the properties according to their shares by appointment of a Commissioner for the purpose. Further prayer was made for restraining the defendants No. 5,6,7 from proceeding with the construction work over the land described in item No. 2 of the schedule, and also against the defendants 1, 2,13 and 14 from proceeding to enter into agreement and consequent sale of the properties described in item no 3 of the schedule. The claim of the plaintiff for partition was based on the following pleadings:

(3.) DEFENDANTS 5 to 7 and defendants 13 and 14 are two sets of purported purchasers of the properties mentioned in items No. 2 and 3 of the ; schedule. These defendants have also contested the suit by filing separate written statements. They have supported the claim of the defendants 1 to 4 affirming the purported previous partition between the plaintiffs and the defendants co -sharers on 13.4.1960. Defendants 5 to 7 have assessed their rights over item No. 2 of the suit properties on the ground that the said properties were sold by Gajanand Agarwala to Sarswati Devi who, in her turn had entered into an agreement for sale of the said premises with defendant No. 7 and had also put defendant No. 7 in possession of the property in question. These defendants have also claimed that defendant No. 3 Sita Devi along with her sons had sold away her right, title and interest in the remaining 1/2 share of the properties mentioned in item No. 2 in their favour on which these defendants had constructed a shopping complex in exercise of their exclusive right, title and interest. The defendants 13 and 14 have claimed that defendant No. 1 had executed an agreement for sale of the properties mentioned in item No. 3 of the schedule with them on 10.10.1993 and had received a sum of rupees one lakh as advance consideration amount from them. These defendants have also claimed that they were originally in occupation of the premises as tenants under defendant No. 1 and they used to pay rent to defendant No. 1.