- (1.) This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 31.05.2007 passed by Sri K.K. Sharma, Additional District Judge, Lucknow upholding the judgment and decree dated 29.03.2007 passed by Sri Sanjiv Siromani, IInd Additional Civil Judge (Senior Division), Lucknow, decreeing the suit for partition etc.
(2.) Briefly stated facts are that Ashok Kumar and others filed suit for partition alleging that Babulal Chaurasia died in the year 1960 and his wife Smt. Tulsa Devi died in the year 1981. Property in Schedule-A belonged to Babulal Chaurasia while property mentioned in Schedule-B belonged to Smt. Tulsa Devi. They had six children namely Kalawati, Padmawati, Rajjan, Renu, Bhaiyaji and Lilawati but except Kalawati and Bhaiyaji, none survived. Kalawati was married to Thakur Prasad Chaurasia, from whom Ashok Kumar, Manju Chaurasia and Sanyogita Chaurasia were born, who filed suit claiming to be heir and legal representatives of Kalawati. Plaintiffs claim half share in the property mentioned in Schedule. Written statement was filed by Bhaiyaji, who claimed to be sole son with no sister and brother. It was averred that suit has been filed at the behest of Smt. Munni Devi, Aunt of Bhaiyaji, who is not vacating the house situated in Bazar Khala. Plaintiffs never resided in the disputed property. Babulal lived in this house with his mother for the last twenty years. Defendant spent Rs. 50,000/- in repairs of the house. Even if Kalawati established herself to be Babulal's daughter, defendant has prescribed the rights on account of adverse possession. Raj Kumar denied the plaintiffs case and adopted the written statement filed by Bhaiyaji. Smt. Shanti Devi, wife of Bhaiyaji, who was substituted after the death of Bhaiyaji filed written statement and claimed the title on the basis of Will dated 15.12.1980, executed by her mother-in-law Tulsa Devi in her favour, as such, entitled to entire property of Tulsa Devi. Shanti Devi has also filed regular suit no. 48 of 1995, which is pending before 1st Additional Civil Judge, Lucknow etc.
(3.) Trial court framed following issues :- " 1. Whether the pedigree given in the plaint is wrong ? If so its effect ? 2. Whether the properties described in Schedule A & B to the plaint devolved upon the plaintiffs and defendant as alleged in the plaint ? 3. Whether the properties in the suit detailed in Schedule A & B devolved upon the defendant alone ? If so, its effect ? 4. Whether the plaintiffs are not related to deceased Tulsa Devi ? If so, its effect ? 5. Whether the plaintiffs have been in possession of the properties in dispute ? 6. Whether the defendant has perfected his title by adverse possession as pleaded by him ? 7. Whether the suit is under valued and court fee paid is insufficient ? 8. Whether the suit is bad for non-joinder of necessary party as alleged in para 10A of W.S.? 9. Whether suit for partition is not maintainable as alleged in para 10-D of W.S. ? 10. What is the share (1/2 or 2/9); if any of the plaint ? 11. 588648-1;