- (1.) THIS appeal is directed against judgment and decree dated 22.01.2013 passed by Additional District Judge No.1, Jodhpur Metropolitan, Jodhpur, whereby, the suit filed by the plaintiffs for partition and permanent injunction has been dismissed and order dated 22.02.2013 passed by said Court, whereby, the judgment dated 22.01.2013 was reviewed and the counter claim filed by the defendant No.1 for possession, which was originally dismissed, has been decreed.
(2.) THE facts in brief may be noticed thus: the appellants - plaintiffs filed a suit, inter alia, with the averments that they are legal representatives of late Kailash Narayan Mathur (KNM) and defendant No.1 Prabhu Narayan Mathur (PNM) is younger brother of late KNM; the families of KNM and PNM were joint and both the families were living together; as PNM had no issue, he alongwith his wife were living with the family of KNM as members of KNM's family; KNM expired in the year 2001; it was then claimed that late KNM and PNM purchased plot No. 60, Sector 4/F from the Urban Improvement Trust, Jodhpur ('the UIT, Jodhpur') by jointly paying the consideration; on account of cordial relations between the parties, the licence was got issued in the name of PNM so that loan can be obtained from the office of PNM in his name; for the same reason, the lease deed was also issued in the name of PNM; both the brothers raised construction on the plot, which amount was spent by both the brothers; earlier PNM used to live in the suit house only but was now staying at another place for last two years; the suit property was plaintiffs' ancestral property and was joint undivided property of the joint Hindu Family of plaintiffs and PNM, which has not been partitioned by metes and bounds; the original title deeds of the suit property were in the power and possession of PNM; plaintiffs were in possession of the ground floor and were residing therein and the first floor is in PNM's possession and has been locked; it was, therefore, claimed in the plaint that only because title deeds stand in the name of PNM, he cannot claim sole ownership and both the plaintiffs and PNM have equal share; on account of the fact that PNM's name was indicated in the title deeds and the prices of the properties have gone up, PNM's intentions have changed and he wanted to sell the suit property, regarding which, he has not right; he has got the electricity connection at the suit premises disconnected and threatened to dispossess them from the suit property; ultimately it was prayed that the suit property be partitioned by metes and bounds and separate possession be given; it be declared that the suit property was joint undivided property of the Hindu undivided family belonging to plaintiffs and PNM; permanent injunction was sought against defendant No.1 from dispossessing the plaintiffs from the suit property; transferring the same or encumber the same and to maintain status quo; injunction was sought against respondent No.2 Jodhpur Vidhyut Vitaran Nigam Limited, Jodhpur ('JVVNL') for immediate restoration of electricity connection without interference by PNM. Pnm filed written statement and counter claim alleging therein that that the plaint was defective, proper court fees has not been paid; the plaintiffs are jointly residing in the property belonging to the defendant as licencees; no Hindu undivided family existed; the suit plot was purchased by Pnm from UIT, Jodhpur in auction in the year 1973 and in the year 1974 loan of Rs.24,500/ - was obtained from RSEB (Pnm's employer) and construction was raised on the ground floor in the year 1974 -75 and some amount was spent from salary and Provident Fund; it was indicated that one more brother Suresh Narayan Mathur is also there; KNM and plaintiff Smt. Saroj had purchased plots from UIT, Jodhpur at Saraswati Nagar and Subhash Nagar, which were sold on account of marriages of four daughters and excessive expenses of the family; KNM and his family, on account of their weak financial condition was permitted to live in his (Pnm) house; on account of the fact that the defendant does not have any issue, the plaintiffs want to grab the property; the plaintiffs were mere licencees; there were criminal proceedings between plaintiffs and Pnm and his wife on account of misbehaviour by plaintiffs; the electricity connection was disconnected on account of the plaintiffs non -paying the electricity charges.
(3.) IN the counter claim it was stated that the suit plot was purchased by PNM from his own income and construction was raised after obtaining loan from the department in the year 1974 -75 and during 1998 -99; the plaintiffs were in possession of one room and store on the ground floor of the house, which has three rooms; two rooms, kitchen, toilet and bathroom etc. are jointly being used and the first and second floor are in PNM's possession; the suit property exclusively belongs to him and all the title documents are in his name; respecting the elder brother, he (KNM) was permitted to live in the house alongwith his family; when the plaintiffs started misbehaving, they were told to shift elsewhere, which resulted in their change of attitude and they started claiming the property belonging to joint Hindu family and has filed the suit, whereas, plaintiffs were only licencees; their licence has been cancelled by registered notice dated 23.05.2011; it was claimed that defendant (PNM) was entitled to exclusive possession by way of mandatory injunction as he is owner of the property and plaintiff's (KNM) family was licencee; his use of the premises be not disturbed by the KNM's family. It was prayed in the counter claim that the joint possession of the ground floor be put to an end and possession of the ground floor be handed over to defendant (PNM).;