- (1.) THIS is a special appeal against the judgment of learned Single Judge in S.B. Civil Regular First Appeal No. 94/68 dated 23rd July, 1973 whereby the judgment and decree of the learned Additional Distt. Judge, Sikar, was set -aside and a preliminary decree in favour of the plaintiffs -appellants was passed holding him to be entitled to l/7th share of the properties.
(2.) DISSATISFIED with the judgment of learned Single Judge, the defendant appellants have filed this special appeal. A suit was filed regarding partition of 3 properties situated at Sikar, in which the plaintiff filed a suit for partition of the joint family properties. The plaintiff stated that Goru Ram had six son; eldest being Ridh Karan. He died in the year 1965 before filing of the suit. Second son was Hanuman, defendant No. l/3rd Son was Kanhaiyalal, defendant No. 2. Plaintiff Subkaran was 4th son and 5th son was Raghunath, who was deaf and dumb and he is defendant No. 3. Youngest son was Devi Dutt, defendant No. 4. It was further stated that the members of the family were enganged in the vocation of tailoring. The plaintiff's case in short was that though he had started living separately and so had his brothers Hanuman, Kanhaiyalal, Raghunath and Devi Dutt since Samvat Year 2011 even while the plaintiff's father was alive because it became necessary to avoid quarrel and frictions between the women folk, yet there was no partition of the immovable properties. Since the defendants declined to have the property divided by metes and bounds, the plaintiff had to file the suit for partition. Goru Ram died in Samvat Year 2012 Jeth Vadi 11 equivalent to 1955.
(3.) THE defendants contested the suit and filed joint written statement and denied that the property continued to be the joint property. According to them Goru Ram during his life time had affected partition of the property between his sons in Samvat Year 2026 corresponding to the year 1949. The details of the partition alleged to have taken place were also mentioned in the written statement. Some of the defendants had put up certain construction in the share of property in their possession. It was also pleaded that one Ram Swaroop and others mentioned in para 2 of the additional pleas were the necessary parties to the suit. After framing the issues and recording evidence of the parties, the learned District Judge came to the conclusion that the property had been divided by metes and bounds and consequently it did not remain the joint property any more and the suit was dismissed.;