The appellant herein prayed for a decree of permanent injunction against the defendants number to deal with the property without a partition having been effected and also prayed for a mandatory injunction on the defendants to remove the wall which had been erected in the disputed property.
The appellant herein had filed the above mentioned suit for declaration and permanent injunction and also mandatory injunction in respect of the suit property situated at Nadigate Jayendra Ganj, Lashkar, Gwalior, bearing Survey No.37/903 on the ground that the suit property was the ancestral property of his father, Bapu Saheb Kante, who had died intestate on 13th May, 1976.
The application for ad interim injunction had been filed in the suit which was rejected by the Trial Court on the ground that a partition had been effected between the legal heirs of Bapu Saheb Kante.
In the present suit filed by the appellant herein an attempt has been made to make out a case that the alleged partition deed of 8th February, 1967, was executed only with the intention of giving a separate share to Jai Singh Rao and the rest of the properties remained joint as there was numberpartition by metes and bounds.
The First Appeal filed by Surendra Kante was allowed and the other appeal filed by the predecessor in interest of Jai Singh Rao was dismissed.
However, since the companycession granted to them was misused, Surendra Kante filed a suit against them for possession in respect of the property in dispute and the same was partly decreed on 14th September, 1993.
Under the said arrangement, Jai Singh Rao was allowed to retain possession of plot No.25/528 and after his death on 15th June, 1971, his wife and children were allowed to live in the said premises.
First Appeal No.76 of 1993 was filed by the legal heirs of Jai Singh Rao, wherein it was sought to be asserted that numberpartition had at all been effected in respect of the properties of late Bapu Saheb Kante and that the alleged document of partition companyld number be acted upon since the same had number been registered and was number, therefore, admissible in evidence.
Accordingly, the Respondents Nos.1 and 2 had numberright to execute an agreement and Special Powers of Attorney in respect of the suit property in favour of the Defendant Nos.8 and 9 on 27th November, 2004, number did the Defendant Nos.8 and 9 have any right to execute a sale deed in favour of Defendant No.10 on 31st March, 2006.
The appellant herein also prayed for a grant of temporary injunction which was rejected by the Trial Court on 14th February, 2007, upon holding that a partition had been effected between the legal heirs of Bapu Saheb Kante and that the Family Settlement had been reduced into writing on 8th February, 1967.
It was also held that a Family Settlement had been effected between the heirs of Bapu Saheb Kante, whereby Smt.
The said Miscellaneous Appeal had been preferred by the appellant against the order dated 14th February, 2007, passed by 5th Additional District Judge, Gwalior, in Civil Suit No.08A of 2006 filed by the appellant rejecting the appellants application under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
The Respondent Nos.1 and 2 herein are the widow and daughter of late Surendra Kante, and after his death their names were recorded in the Municipal records.
A Letters Patent Appeal was filed by Jai Singh Rao questioning the judgment and decree passed by the Trial Court, which was also dismissed by the Division Bench of the High Court upon holding that the partition deed dated 8th February, 1967, is a Memorandum of Partition pertaining to a previous oral partition.
At this juncture it may be pertinent to mention that Bapu Saheb Kante is said to have had two wives, Smt.
Putli Bai and Surendra Kante, the widow and son of Bapu Saheb Kante, acquired a 50 share of House No.95/21.
The appellant herein is one of the sons of Bapu Saheb Kante through his wife, Smt.
When, after the death of Bapu Saheb Kante a son by his second wife, Jai Singh Rao, came to claim a share in his estate, a family settlement was arrived at by which the properties of Bapu Saheb Kante were divided amongst the heirs by a Family Arrangement dated 8th February, 1967, by metes and bounds.
Putli Bai.
ALTAMAS KABIR, J. Leave granted.
Putli Bai and the mother of Jai Singh Rao.
This appeal is directed against the judgment and order dated 13th October, 2008, passed by the Gwalior Bench of the Madhya Pradesh High Court dismissing Miscellaneous Appeal No.478 of 2007 filed by the appellant herein.
