- (1.) This is a defendants second appeal under Section 100 CPC. It has been filed against the judgment and decree dated 30.10.1984 in Civil Appeal N0. 212 of 1983 passed by the First Additional District Judge, Bijnor whereby the judgment and decree passed by the, Trial Court in Suit No. 131 of 1979 between Jai Prakash v. Birmawati and Ors. has been affirmed.
(2.) At the time when this appeal was admitted the substantial question of law contained in paragraph 2 and 3 had been formulated. They are quoted hereunder: 1. Whether the finding that there was an oral family partition in 1960 in which the property in dispute came to the Qurah of the plaintiff respondent is erroneous in law inasmuch as the plaintiff respondent was not able to give the material particulars relating to the alleged partition in his testimony? 2. Whether this admission of Jai Prakash plaintiff respondent that he was a party in objection of Ghasita against the decree passed in original Suit No. 478 of 1967, has been erroneously ignored by the courts below?
(3.) Sri B. Dayal learned Counsel for the defendant appellant has submitted that Suit No. 131 of 1979 was filed by Jai Prakash son of Ganga Ram against the defendant appellant who is widow of Sri Ganga Ram and the other sons of Ganga Ram as also one Ghasita was made a defendant on the ground that he was tenant of the plaintiff and in an earlier, Suit No. 478 of 1967 Birmawati v. Om Prakash and Ghasita was dispossessed in execution of such decree. He states that the plaintiff respondent claimed a declaration that he is owner of the disputed properties which contained shops and Balkhana and he be given possession after eviction of the defendant No. 1 to 6. According to Sri Dayal a further declaration was sought by the plaintiff respondent that defendant No. 1 namely Smt. Birmawati widow of Sri Ganga Ram be held not to be owner of the property in question and be injuncted from interfering or changing the nature of the shops along with Balkhana on the basis of the decree passed in Suit No. 478 of 1967. According to Sri Dayal Ghasita (defendant No. 7) colluded with Om Prakash and filed Civil Revision No. 70 of 1976 which was rejected by the High Court on 27.10.1978 and in Suit No. 478 of 1967 Jai Prakash was not made a party since he had no concern with the property of Smt. Birmawati.;