M.C.JAIN,J. - (1.) THIS is a defendants' first appeal against the judgment and decree of the learned District Judge, Bikaner dated 30 -4 -1973 whereby, the plaintiffs suit for partition was decreed and a preliminary decree for partition was passed in respect of the Joint Hindu Family property in which the plaintiffs claimed their 1/2 share.
(2.) THE plaintiffs Pukhraj and Malchand instituted a suit for partition against Laduram with the allegations that there was a common ancestor Devchand, who had three sons; Daulatram, Maghraj alias Meghraj and Chandmal, Daulatram had three sons; Harakchand, Bherudan and defendant Laduram. Harakchand has one son Mangtulal alias Mangatlal. Bherudan was survived by his widow Mst. Soni. Chandmal had three sons: Birdhi -chand, Ramlal and Nemchand. Three brothers namely; Daulatram, Maghraj @ Meghraj and Chandmal had a land in Purana Mohalla near Tehsil Bhawan in the town of Loonkaransar vide patta dated 27 -11 -1918 issued by the Revenue Commissioner. Maghraj has sold his eastern portion to Tarachand Rakecha and Chandmal's sons had sold their southern portion to the ancestors of the plaintiffs, which ultimately fell to the share of Malchand s/o plaintiff No. 1 Pukhraj. The plaintiffs constituted a Joint Hindu Family. So far as the present suit is concerned, the plaintiff's case is that the remaining property of the aforesaid patta remained the joint property of the three sons of Daulatram. The eastern portion of that property was purchased by Tolaram from the widow of Bherudan and the remaining property remained the joint property of Harakchand's son Mangtulal and Laduram. Thus, in this property, Mangtulal and Laduram had 1/2 share each. Mangtlal sold his share to Pukhraj through a registered sale -deed dated 26 -10 -1968. The plaintiff No. 2 father being the Head of the Family, so he has been impleaded as plaintiff No. 2. That property has been described by the plaintiff in para 3 of the plaint. The plaintiffs made allegations regarding 'Bakal'. It was alleged that the plaintiffs had 3/4 shre in the 'Bakal'. The plaintiffs therefore, sought a declaration that they have got 3/4 share in 'Bakal' and 1/2 share in the remaining property and a decree for partition be passed in respect of the property in question and the plaintiffs be put in the separate possession of their respective share.
(3.) THE suit was contesed by the defendant Laduram. The execution of the sale -deed by Mangtulal in favour of the plaintiff No. 1 was denied. The other averments made in the plaint in respect to the suit property were also denied. An objection was taken that Jethmal, Narainchand, Navratanmal, Puranchand and Mangtulal are the necessary patties. Without they being impleaded the suit is not maintainable. A plea of misjoinder of the parties was also raised. The plea of adverse possession was also taken. It was alleged that Mangtulal as well as the alleged vendee were never in possession of the property in dispute. It was further pleaded that the court -fee paid was insufficient. Besides that the defendants since Samvat 1991 -92 had been carrying on repairs and improvements openly which was never objected and Mangtulal had been admitting that the property in dispute is solely owned by the defendants and as such, the suit is not within the 1 mitation. It was prayed that the plaintiffs suit be dismissed with costs.;