- (1.) DISMISSAL by the trial court i.e. Additional District Judge No.6, Jaipur City, Jaipur, vide its judgment and decree dated 16 -03 -1992, of a suit for declaration and permanent injunction or in the alternative for partition as laid by the plaintiff, Vishambhar Dayal (since deceased now represented through his LRs), has entailed this civil first appeal under Section 96 CPC.
(2.) THE facts of the case are that the plaintiff -appellant (hereinafter 'the plaintiff') laid the aforementioned suit stating that his father Prahlad Ram Sharma expired on or about 24 -04 -1958 at Kota where he was residing at the relevant time with his elder son i.e. the defendant No.1 in the suit one Ram Pratap Sharma - now respondent No.1 in this appeal (hereinafter 'the defendant No.1, also now dead and represented by his LRs.). It was stated that aside of the plaintiff and the defendant No.1, the deceased Prahlad Ram Sharma also had two other sons i.e. Banarasi Das Sharma and Hari Ram Sharma, arrayed as defendant Nos.2 and 3 in the suit. The case of the plaintiff was that the deceased Prahlad Ram Sharma, resident of village Gadhbasai, Tehsil Thanagazi, District Alwar was a well -known astrologer who had a booming practice in astrology (Panditai) at Ferozpur in Punjab State prior to the partition of India in 1947 and had shifted thereafter to Alwar in Rajasthan. It was stated that at the time of his death, Prahlad Ram Sharma left behind immovable properties in the form of agricultural land at village Thanagazi and a house in Alwar city. Further the deceased was stated to have also left behind a sum of Rs.10,000/ - in his savings bank account No.618 (hereinafter 'bank account') with the Punjab National Bank, Alwar Branch. It was stated that the plaintiff was at the relevant time working as a Sub Divisional Officer at Jhalawar, the defendant No.1 Ram Pratap Sharma working as Conservator of Forest, the defendant No.2 Banarasi Das Sharma as Mines Foremen at Bhilwara and defendant No.3 Hari Ram Sharma as Commercial Tax Inspector at Alwar. Further the case set up in the suit was that the defendant No.1 being the oldest son of late Prahlad Ram Sharma took over as karta (manager) of Hindu United family following Prahlad Ram Ji's death on 24 -04 -1958 and came into management of the HUF's movable and immovable properties. The Additional Collector issued a succession certificate in the name of the four sons in the format provided by the Punjab National Bank, Alwar Branch whereupon the entire amount allegedly in the Prahlad Ram Sharma's saving bank account was obtained by the defendant No.1 and kept in his control and custody. It was stated that during the life time, late Prahlad Ram Sharma was desirous that all his four sons live together in Jaipur for which purpose a large plot was to be obtained and houses constructed thereon by each of his sons thereon. And in the context of the aforesaid desire of late Prahlad Ram Sharma, plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur admeasuring 4,833 sq. yard was purchased in the name of defendant No.1 by virtue of his being the oldest of the sons of late Prahlad Ram Sharma. The said plot was stated to have been allotted in March, 1959 for a consideration of Rs.8,785.99/ -. The amount allegedly provided from the monies particularly the cash left behind by late Prahlad Ram Sharma in his saving bank account with PNB, Alwar Branch. It was stated that even though the plot was thus standing in the name of defendant No.1 alone, it was only indicative of the absolute faith and trust of the other brothers in him by virtue of his being their oldest brother. It was then stated that sometime in December, 1959, the said plot was subjected to an oral partition allegedly as per the map annexed to the plaint and while the portion marked ABCD in the map aforesaid - Front Western portion came to the share of defendant No.1 Ram Pratap Sharma, the portion marked ABEF - Front Eastern portion came to the plaintiff's share. Similarly the portion marked AFGH was stated to be set a part under the oral partition in favour of defendant No.2 Banarasi Das Sharma, and the portion marked as ABIH for the defendant No.3 Hari Ram Sharma. The four brothers were stated to have thus come ownership and possession of their respective portions of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur albeit formally alloted in the name of defendant No.1 Ram Pratap Sharma. According to the plaintiff, thereafter between 1959 to 1968 from his own funds, he proceeded to construct a residential house in the portion marked ABEF in the map annexed to the plaint - Front Eastern portion - which was thus in his ownership and possession. The portion marked ABEF, sometime in the month of July, 1962, became livable, whereupon the plaintiff commenced residing therein with his family and had so continued without interruption as owner. According to the plaintiff, defendant No.1 on his part having constructed his own house over the Front Western portion of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur came to reside therein commencing 1965. Defendant Nos.2 and 3 however were stated to have not undertaken any construction over their alleged portions in plot No.C -15 under the purported oral partition. Stating that in spite of being the owner of the portion marked ABEF - Front Eastern portion - (as per the map annexed to the plaint) in plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur, the plaintiff misled by his sons and others was however denying the ownership of the plaintiff over the ABEF portion of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur and threatening to dispossess him therefrom. It was submitted that prior to the immediate threats of dispossession and denial of the ownership of the plaintiff, in the year 1963 also there had been a disagreement between the ladies of the house resulting in the plaintiff demanding the oral partition being formalized by a writing. Thereupon vide letter dated 06.01.1964, the defendant No.1 was alleged to have mollified the plaintiff assuring him that no injustice would be occasioned to him and he would act as a caring and just older brother. This letter under the hand of the defendant No.1 was propped as an admission of the alleged oral partition of December, 1959. Apprehensive of yet being dispossessed from the mapped ABEF portion of plot No.C -15 in spite of ownership claimed thereon, it was prayed in the suit that a declaration of the plaintiff's ownership of ABEF portion of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur as per map annexed to the plaint be made and the defendant No.1 be restrained by way of a permanent injunction from interfering with the plaintiff's peaceful enjoyment of the suit property. Alternatively it was prayed that plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur being the joint property of the plaintiff and defendant Nos.1, 2 and 3, be appropriately partitioned in equal measure and a decree accordingly drawn. On service of notice of the suit and receipt of the plaint, a written statement of absolute denial of the plaintiff's case was filed by the defendant No.1. It was stated that the defendant No.1 was the absolute owner of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur and no part of the said plot was ever held by him under trust for or on behalf of his brothers. It was emphatically denied that the said plot was at anytime in the joint ownership of the plaintiff and the defendant Nos.1, 2 and 3. The oral partition alleged in the plaint was also emphatically denied stating that no occasion therefore could conceivably arise in the fact of the sole ownership of the defendant No.1. It was stated that neither the plaintiff, nor defendant Nos.2 and 3 contributed in any manner whatsoever towards the consideration for the purchase of plot No.C -15 aforesaid or constructions made thereon. The funds of Late Prahlad Ram Sharma were neither available, nor at all used in the purchase of plot No.C -15 aforesaid. It was stated that the plot was allotted on an application made in the year 1956 by the defendant himself in his individual capacity and the total consideration of Rs. 8,785.99/ - therefor was provided by himself from his own funds / resources as he had at the relevant time been a Class -I officer in the State of Rajasthan for over two decades. It was stated that in fact the plaintiff, the younger brother of defendant No.1, had been a tenant commencing 28.06.1962 @ Rs.140/ - p.m. in the Front Eastern portion of the plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur, constructed by the defendant No.1 from his own resources after building permission from the competent authority. And in fact, the factum of tenancy had been so admitted to by the plaintiff himself on 08 -04 -1964 before House Tax Revising Authority of the Jaipur Municipal Council. It was stated that the plaintiff took receipts of rent @ 140/ - per month from the defendant No.1 and also certified himself to be a tenant in order to avail the reimbursement of rent paid @ 140/ - p.m. for the period July, 1962 to December, 1964 when he was working as an Assistant Settlement Officer with the Revenue Department, Government of Rajasthan. It was stated that further vide letter dated 04 -07 -1967 addressed to the Urban Land Assessment Officer, Jaipur, the plaintiff had categorically stated that any portion of the house thereon i.e. No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur was not his own house, but that of his brother. Additionally on 11 -10 -1976, the plaintiff filed a declaration before the Sub -Registrar, Alwar stating that he was a part -owner of House No.44A, Hope Circus, Alwar which came to his share after the death of his father Prahlad Ram Sharma on 24 -04 -1958 and was selling out the said property owned by him. In the said declaration the plaintiff had detailed all immovable property held by him in the State of Rajasthan as required under extant law and it was not stated therein that he owned a house on a portion of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur. It was further stated that earlier on 06 -09 -1964 (Ex.A -2), the plaintiff had addressed an inland latter to the defendant No.1, then at the relevant time posted at Kota, stating that if the defendant No.1 proposed to sell plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur, it was best to sell it to the plaintiff himself as he could obtain Rs.20,000/ - as a loan from the Government and would undertake to pay the remainder amount of the consideration for the potential sale / purchase of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur in the ownership of defendant No.1 in future albeit "without profit ". It was stated in the said letter dated 06 -09 -1964 (Ex.A -2) by the plaintiff that his proposal to purchase plot No.C -15 aforesaid was occasioned by the fact that the plaintiff would sooner or later require a house in Jaipur. The defendant No.1 further pointed out that aside of the plaintiff's admission of not owning any property at all in Jaipur, what of the Front Eastern portion of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur, the plaintiff as a Government servant had also at no point of time ever informed the Government as he was mandated to under the prevailing Government of Rajasthan instructions of his alleged ownership of a portion of plot No.C -15 purportedly coming to his share on an oral partition of December, 1959. It was further pointed out that similarly no details of the house / property as claimed in the suit as his own by the plaintiff were also ever disclosed in his income tax returns. It was submitted that the allegation of the plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur admittedly standing in the name of the defendant No.1 alone under a registered lease -deed issued by the UIT, Jaipur being orally divided between the four brothers was further falsified by the fact that defendant Nos.2 and 3 had vide applications dated 24 -07 -1963 and 22 -07 -1963 for allotment of residential plot to the UIT, Jaipur supported by their affidavits duly attested by a Magistrate I -Class, Jaipur had stated that they had no plot residential or otherwise in Jaipur. It was stated that consequent to the applications for allotment of residential plots in the city of Jaipur defendant Nos.2 and 3 had been allotted plots bearing Nos.G -84 and G -97 respectively in Banipark Extension Scheme situate in Shastri Nagar. It was stated that the aforesaid two defendants had even built their houses from their own funds over plot Nos.G -84 and G -97 and were at the time of filing the written statement living therein. It was further pointed out that the defendant No.1 had alone in his own name deposited house tax at all times in respect of the entire plot No.C -15 and also similarly deposited annual urban tax in respect thereof. It was submitted that defendant No.1 applied for building permission for construction over plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur to the extant Jaipur Municipal corporation and permission was received on 01 -11 -1959 whereupon construction over the eastern portion, wrongly claimed by the plaintiff as his own in the suit before the trial court, was completed at the cost of the defendant No.1 himself towards end of 1961. Thereafter effective 28 -06 -1962 or nearabout the house on the Front Eastern portion was rented out to the plaintiff by the defendant No.1 @ Rs.140/ - p.m. It was pointed out that by virtue of being the older brother, the defendant No.1 did not require the plaintiff, a younger brother, to enter into a formal rent agreement and to sign a rent note. It was further pointed out that the falsity of the plaintiff's case of an oral partition in equal measure between the four brothers in respect of plot No.C -15, Sawai Jai Singh Highway, Banipark, Jaipur was established by the fact that the four purported plots within plot No.C -15 as indicated on the plaintiff's ipse dixit in a self serving map annexed to the plaint were not equal in size in any manner whatsoever. It was pointed out that the lynch pin of the plaintiff's case that the defendant No.1 had vide letter dated 06 -01 -1964 assured the plaintiff of justice by allegedly indicating his intent of putting the purported oral partition in writing was absolutely false and a mere desperate last ditch attempt to sustain an otherwise hopeless case. It was stated that the context to the letter dated 06 -01 -1964 stated to be the plaintiff's own purported letter of 31 -12 -1963 which was wholly forged and fabricated and never received by the defendant No.1 nor responded to.
(3.) REJOINDER to the written statement was filed wherein the plaintiff admitted that he had been the defendant's tenant but upto 1968 not in the house built on the Front Eastern portion of plot No.C -15 - but in the Western Front portion. Thereafter he built his own house over the Front Eastern portion and came to occupy it as owner. This assertion by the plaintiff was despite a contra initial stand taken in the plaint that he was from the very beginning, commencing 1962 residing in the eastern portion of plot No.C -15. The defendant No.2 in his written statement supported the case of the plaintiff. The defendant No.3 however remained ex -parte.;