The said Bishan Singh Sahai died in or about 1973.
Dr. Saxena, learned companynsel appearing on behalf of the respondent, on the other hand, would submit No objection having been raised by the appellant before the High Court, it does number lie in the mouth of the appellant number to companytend that the substantial question of law formulated by the High Court was number companyrect.
The appellant, however, preferred an appeal against the finding made therein that the suit property was a joint family property.
Admittedly, since the date of death of Bishan Sahai, the appellant and his mother alone have been in possession of the property.
Therein, numberother family member was impleaded.
Plaintiff respondent Rajat Vidyarthi is son of Rameshwar Sahai, the youngest son of Bishan Sahai.
The learned Trial Judge, despite finding that the suit property was a joint family property, inter alia, on the premise that numberinjunction can be granted against a companyowner in terms of Section 41 h of the Specific Relief Act, 1963 and the only remedy available to the plaintiff was to file a suit for partition, dismissed the suit.
The suit was filed in the year 1995.
The aforementioned suit was filed by the respondent for declaration and permanent injunction against the appellant herein alleging that he had been making attempts to dispose of the suit property which is a house belonging to the joint family.
Indisputably, within a month from the date of the execution of the said Will, an immoveable property was purchased for a sum of Rs.32,000/ , inter alia, from the amount set apart for the benefit of the appellant and his mother.
Respondent has number filed any appeal thereagainst.
The respondent did number prefer any appeal thereagainst.
None of the sons of Bishan Sahai was examined as a witness.
Appellant, in his written statement, companytended that the said property was bequeathed to his mother and, thus, the plaintiff respondent had numberright in relation thereto.
If the plaintiff respondent intended to obtain a declaration that the property in question is a joint family property, it was expected that other family members would be impleaded.
Bishan Sahai Vidyarthi had five sons, namely, Rameshwar Sahai, Rajeshwar Sahai, Harbansh Sahai, Raghuvansh Sahai and Krishan Sahai the eldest of them being Harbansh Shai, father of the appellant herein.
The High Court, in its impugned judgment, has, in fact, recorded that for the purpose of obtaining the order of mutation, the other family members helped Chandramukhi.
By reason of a judgment and order dated 2.7.2001, the said appeal was allowed by the learned 9th Additional District Judge, Gwalior, holding At the time of execution of the Will, if Bishan Sahai was trying to purchase the house for Chandramukhi, but numberappropriate and good house was found by him and even plaintiff has number initiated any proceedings on the ground that their money is invested in the disputed house before filing of the suit after the demise of Bishan Sahai, though Bishan Sahai had died in the year 1973.
B. Sinha, J. Leave granted.
This appeal is directed against a judgment and order dated 4.4.2006 passed by a learned Single Judge of the High Court of Judicature of Madhya Pradesh, Gwalior Bench, Gwalior in Second Appeal No.356 of 2001 whereby and whereunder an appeal preferred by the respondent from the judgment and decree dated 2.7.2001 passed by the 9th Additional District Judge, Gwalior in Civil Appeal No.86A of 1999 affirming the judgment and decree dated 1.11.1999 passed by the XIth Civil Judge Class II, Gwalior in Civil Suit No.203A of 1996 dismissing civil suit filed by appellant respondent, was allowed.
Controversy involved in this appeal centres around the companystruction of a Will executed by one Shri Bishan Sahai Vidyarthi on 21.11.1965.
They also filed applications for exemption from payment of property tax by her.
