Arun Bhansali, J. - (1.) THIS appeal under Section 96 C.P.C. is directed against the judgment and decree dated 23.09.2002 passed by Additional District Judge No. 3, Jodhpur, whereby, the suit filed by the appellant -plaintiffs seeking partition has been rejected.
(2.) THE facts in brief may be noticed thus: the plaintiffs father and son respectively filed a suit on 16.07.1999 against defendant No. 1 brother of plaintiff No. 1, his wife and son and impleaded his own daughters as defendant Nos. 4 and 5 and purchasers of part of the suit property as defendant Nos. 6 and 7, with the averments that father of the plaintiff No. 1 and defendant No. 1 -Shivlal purchased properties situated at 'Sardarpura' and outside 'Sojati Gate' from the money received from Kishanlal (his father). Ram Prakash (plaintiff No. 1), Om Prakash, Nenulal and Shyamlal (defendant No. 1), sons were borne to Shivlal among which, Om Prakash and Nenulal died issueless. The properties purchased by Shivlal from money received from Kishanlal (his father) were ancestral and Joint Hindu Family properties, it was not possible for the parties to live jointly, the plaintiffs came to know that the property situated at 'Sardarpura' has been transferred on 06.07.1999, the plaintiffs' share in the property situated at 'Sardarpura' and 'Sojati Gate' be determined, decree for their share be passed and part of the consideration regarding the properties sold may also be decreed. A written statement was filed by the defendant Nos. 1 to 3, inter alia, indicating that the plaintiffs have not clarified their status regarding the suit properties as to whether they are joint owners, co -owners or co -parceners and have not indicated the share, which they are seeking in the suit properties; eldest child of Shivlal, Smt. Ratan Kanwar is alive, however, she has not been indicated in the family -tree; Shivlal had only three children from which Nenulal's name was later on changed to Shyamlal, Nenulal had not died instead his name was changed; the plaintiffs have no right, title, interest, possession or share in the suit properties; the properties are neither ancestral nor Joint Hindu Family properties; Shivlal had purchased the 'Sardarpura' property from his personal income on 01.02.1935 from Buda and as per the prevalent law in Jodhpur State 'Patta' was got issued and out of love and affection names of Ram Prakash, Nenulal and Om Prakash were got included, whereas all the three sons were minor and had not contributed anything; Om Prakash died unmarried and issueless; Shivlal, who was sole owner of the properties, executed Will dated 09.07.1958 in favour of his wife Smt. Anop Kanwar; on 02.05.1925 Shivlal purchased property situated at outside 'Sojati Gate' by registered sale -deed from Shekh Mohd. Baksh Abdul Latif, whose 'Patta' was made in the name of Shivlal and the said property was also bequeathed in favour of Smt. Anop Kanwar by Will dated 09.07.1958; Shivlal died on 26.02.1965, whereafter Smt. Anop Kanwar instituted proceedings before the District Court, Jodhpur for obtaining probate of the Will, wherein notice was received by plaintiff No. 1, however, he did not file any objection; in the will Shivlal had clarified that the name of the sons were included in the 'Patta' out of love and affection and the properties were his self -acquired properties; after obtaining probate, Smt. Anop Kanwar vide registered gift deed dated 27.06.1969 gifted the 'Sardarpura' property to defendant No. 1 and 2, which was accepted by them and ever since they are in possession as owners; the document is more than 30 years old; the 'Sojati Gate' property was also gifted by registered gift deed dated 19.04.1973 to defendant No. 1, which was accepted by him and ever since he is in possession of the suit property as owner and the plaintiffs have no right, title or interest in the said property; the defendants have right to transfer the 'Sardarpura' property and part whereof was transferred earlier and the rest of the property was transferred after the stay was vacated; it was claimed that the plaintiffs have not paid house -tax of the said properties instead defendants are looking after the properties and paying the taxes and have let out the properties and recovered the rent; the electricity and water connections are in the name of defendant No. 1 and based on gift deeds dated 27.06.1969 and 19.04.1973 defendant Nos. 1 and 2 and defendant No. 1 respectively are in possession as owners; the suit is time barred; ad valorem court -fees has not been paid and cause of action has not been indicated, therefore, the suit was liable to be rejected; daughter of Shivlal, Smt. Ratan Kanwar is a necessary party. Ultimately, it was prayed that the suit be rejected.
(3.) THE trial court framed as many as 22 issues. On behalf of the plaintiffs, 4 witnesses were examined and 24 documents were exhibited. On behalf of defendants, 2 witnesses were examined and 21 documents were exhibited.;