VIRENDRA KUMAR MATHUR,J. - (1.) This S.B. Civil First Appeal under section 96 of the Code of Civil Procedure has been filed against the judgment and decree dated 02.05.2009 passed by the learned Additional District Judge (Fast Track), Parbatsar, District Nagaur in Civil Original Suit No. 21/2004 (26/2003) whereby the trial court decided issue No. 2 against the appellant-plaintiff and declined to partition the property mentioned in para No. 2of the plaint
(2.) Briefly stated, the appellant-plaintiff filed a suit for partition against the respondents-defendants stating therein that all the respondents-defendants and appellant-plaintiff are sons of late Shri Sohan Lal and grand-sons of Late Shri Sugan Chand. Ancestral and immovable property of Late Shri Sohan Lal is situated in Kuchaman City, Tehsil Nava, District Nagaur, the description of which is mentioned in paras Nos. 2 and of the plaint. It was specifically stated that all the four properties are the ancestral properties of the parties and were being jointly used by them. It was also stated that the respondents-defendants Nos.1 to 3 and 5 are permanently residing in Kuchaman City, whereas the appellant-plaintiff is residing in Mumbai and respondent-defendant No. 4 is residing in Jaipur, but all the respondents-defendants and appellant-plaintiff are having joint possession over the property. It was further stated that in one of the rooms of the property mentioned in para No. 2 and which is in the northern side opening towards east-west both side, is being used by the appellant-plaintiff and his household articles are lying therein. It was stated that whenever the appellant-plaintiff used to come from Mumbai to Kuchaman City, he stays in that room. One of the rooms, opening towards northern side is in possession of the respondent-defendant Padamchand. The rest of the portions are lying unused. This property has not been partitioned between the parties. It is further stated that till the lifetime of the mother of the parties, entire family members and Late Shri Sohan Lal were being dominated and maintained by the mother. Recently their mother died and their father had died about 17 years ago. It is further stated that being Hindu, the parties are controlled by Hindu Law. After the death of Late Shri Sohan Lal, the parties became legal heirs of the ancestral property and they got rights since birth in these properties and the properties are required to be partitioned in 1/7th share in each favour but the respondent-defendant No. 1 is not ready for mutual partition and wants to deprive the other legal heirs from their rights in the property. It was also stated that all the papers of the property are lying with the respondent-defendant No. 1 and he may misuse the same at any time by selling the property. On this ground the properties were sought to be partitioned by meets and bounds
(3.) The respondent-defendant No. 1 filed his written statement and stated that the property mentioned in para No. 2of the suit was the self acquired property of Late Shri Sohan Lal and it was a plot and thereafter construction was raised by Late Shri Sohan Lal. Thereafter, father Shri Sohan Lal executed a Will in favour of the mother and the mother, in turn, sold it to some one else. Therefore, this property cannot be made subject matter of the suit. With regard to the properties mentioned in paras Nos. 2 it was stated that the same is ancestral property of Late Shri Sohan Lal. It was also stated that the present owner of the property mentioned in para No. 2 has not been impleaded as party to the suit and, therefore, no relief can be granted with respect to the property mentioned in para No. 2of the plaint. It was denied that any household articles of the appellant-plaintiff are lying in the property mentioned in para No. 2of the plaint nor any household articles of the respondent-defendant No. 1 is lying there. It was also stated that two sisters of the parties have not been impleaded as parties to the suit and they have equal share in the property and are necessary party to the suit. The appellant-plaintiff and respondents-defendants Nos.2 to 6 filed the present suit in collusion just with a view to put loss to the respondent-defendant No. 1. No documents are available with the respondent-defendant No. 1. The respondent-defendant No. 1 does not want to sell any property;