KAILASH CHANDRA JOSHI - (1.) THIS civil second appeal preferred by appellant -plaintiffs Mohd. Hussain and Mohd. Hasan is directed against the judgment and decree dated 30.09.2005 passed by learned District Judge, Pali in Civil Appeal No. 87/2004, by which the learned lower appellate court allowed the appeal filed by the respondent -defendants and quashed and set aside the judgment and decree dated 09.08.2004 passed by learned Civil Judge (Senior Division), Pali in Civil Original Suit No. 8/2002, by which the learned trial court decreed the suit filed by the appellant -plaintiffs for partition, possession and permanent injunction.
(2.) The brief facts of the case are that the appellant -plaintiffs filed a suit against the defendant -respondents for partition, possession and permanent injunction. It was averred in the plaint that there is a house situated at Kheradiyon Ka Mohalla, Busi Ki Gali, Pali in the name of plaintiffs' grandfather Ibrahim @ Lal Mohammed. The pedigree of Ibrahim is as under : - It was further averred in the plaint that Ibrahim @ Lal Mohammed and his all three sons are no more. Hence, the appellants and the defendant No.1, who are grandsons of Ibrahim are the common shareholders in the aforesaid house because no partition has yet taken place. It is also stated that plaintiffs' father executed a release -deed in favour of his brothers Mohd. Shafi and Mohd. Hanif in respect of the house in question. Mohd. Shafi was bachelor and as such having no child. In such circumstances, the share of Mohd. Shafi, which was given by Mohd. Umar (father of the plaintiffs) came back to plaintiffs' father. It was further stated that the plaintiffs are having 1/3rd share in the aforesaid house and accordingly, a decree of partition may be passed and they may be ordered to be given possession of there share.
(3.) THE defendant -respondents filed written statement denying the averments made in the plaint. It was averred that the defendant No.1 and 2 are the only owner of the property in question. It was also averred that Mohd. Umar executed a release -deed on 28.09.1963 in favour of his two brothers, namely, Mohd. Shafi and Mohd. Hanif and the said release -deed was registered on 30.09.1963. Thereafter Mohd. Shafi died. It was averred that since release -deed had been executed by the father of the plaintiffs, therefore, they have no right to claim any share in the property. Hence, it was prayed that the suit may be dismissed.;