- (1.) THIS second appeal under Section 100 CPC has been filed against the judgment and decree dated 30.4.2005 passed by Additional District Judge No.1, Bundi in Civil Appeal No. 7/2000 allowing appeal in modification of the decree, the preliminary decree was passed and the judgment and decree dated 31.3.2000 passed by Civil Judge (Junior Division), Hindauli in Civil Suit No. 97/93 decreeing the suit for permanent injunction was maintained.
(2.) THE short facts of the case are that plaintiff respondents filed a suit for partition and also for permanent injunction with the pleadings that a Bada described as 'A' in the plaint is in the ownership of the plaintiffs. The measurement of Bada is 41x50 feet which is ancestral and plaintiff respondents were having half share in it. They requested for partition which was denied, hence suit for injunction and partition has been filed. The appellants filed written statement and stated that Bada is not ancestral property. The plaintiffs are not having any right over it. Ancestral house was already partitioned and Bada is only in the ownership of the appellants. The trial Court has granted the relief for declaration as regards the half of the property and also decreed the suit for permanent injunction against which an appeal has been filed by the present appellants. The appellate court has modified the judgment and decree and it has been held that plaintiff respondents are having half of the share in the property and preliminary decree has been passed for partition, hence this appeal.
(3.) THE contention of the appellants is that the trial court has committed serious error in not passing the preliminary decree. The appellate court was not justified in passing the preliminary decree. The findings of the trial court was absolutely perverse and appellate court should quash the findings and remand the matter back to consider the question of preliminary decree. The appellate court has not considered the fact that the partition or injunction could not be granted as the plaintiffs are not in possession of the property hence the findings of the appellate court are per verse. Per contra, the contention of the respondents is that there is no infirmity in the judgment of the appellate court. The findings of the trial court has not been disturbed and in respect of declaratory relief, preliminary decree for partition has been modified by the appellate court which is within its jurisdiction. Heard the learned counsel for the parties and perused the judgments and decree under appeal.;