Hon'ble SINGHVI, J.—These appeals are directed against judgment dated 22.7.2004 of the learned Single Judge of the Madhya Pradesh High Court whereby he allowed the appeals filed by respondent No.1 – Vinod Kumar and respondent No.2 – Anand Kumar, set aside judgment and decree dated 21.11.2002 passed by II Additional District Judge (Fast Track), Harda (hereinafter described as the 'trial Court') and decreed the suit filed by respondent No.1 for declaration, possession, permanent injunction and recovery of rent in respect of the share of Shri Harishankar (father of the appellant and respondent Nos.1 and 2) in the joint family property. The learned Single Judge also declared that respondent No.2 shall be entitled to possession of his share in the suit property in terms of Will dated 9.6.1989 (Ex. P-1) executed by Shri Harishankar.

2. For the sake of convenience, the parties are being referred to as the appellant and the respondents.

3. Appellant Mahesh Kumar who is now represented by his legal representatives, respondent Nos. 1 and 2 and their father were members of the joint family. In 1965, respondent No.2 took his share and separated from the joint family. After 20 years, another partition took place among the remaining members of the joint family. In the second partition, respondent No.1 got 9.83 acres land of village Nimchakhurd and a house situated at Timarni Bazar. The appellant got the other house situated at Timarni and cash and Shri Harishankar got land comprised in Khasra No.92/1, 92/2 and 92/9 situated at Timarni along with the bungalow constructed over it.

4. In 1995, respondent No.1 filed Civil Suit No.20A of 1995 and prayed for grant of a declaration that by virtue of registered Will dated 9.6.1989 executed by Shri Harishankar, he had become sole owner of the property shown in red colour in the map annexed with the plaint and half portion in the shop situated in the bungalow. He also prayed for grant of a decree of possession by alleging that after the death of father Shri Harishankar, he had asked the appellant to give shares to the brothers in terms of Will dated 9.6.1989 but latter declined to do so. The last prayer made by respondent No.1 was that the appellant may be directed to pay him share in the arrears of rent of the Bun-galow which was leased out to Firm Ramesh Chand Dinesh Kumar Agarwal.

5. In his written statement the appellant claimed that after the 2nd partition, the parents started living with him and he and his family was looking after them. According to the appellant his mother died in January, 1992 and after her death, Shri Harishankar executed Will dated 10.2.1992 and bequeathed his share to him because he was looking after the parents and took care of the mother till her death on 23.1.1992 (Ex. D-2). He also pleaded that respondent Nos.1 and 2 were not given anything because they had already got their respective shares in the joint family property.

6. In a separate written statement filed by him through his son Alok Kumarcum-special power of attorney, respondent No.2 denied that he had separated from the joint family in 1965 and taken his share. Respondent No.2 pleaded that he is not bound by the partition which is said to have taken place in 1990 between the appellant, respondent No.1 and Shri Harishankar and that he is entitled to one-third share in the agricultural land and other properties of the joint family. However, he did not file counter claim in support of his plea that he was entitled to one-third share in what he described as the joint family property.

7. Respondent No.1 amended the plaint more than once but did not seek a declaration of invalidity qua Will dated 10.2.1992 on the ground that Shri Harishankar had executed the same under the influence of the appellant.

8. On the pleadings of the parties, the trial Court framed various issues including the following:

"(1) Whether respondent No.2 had separated from the joint family in 1965 by taking his share?

(2) Whether the second partition too

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