JUDGMENT

Virendra Kumar Mathur, J. - This Civil First Appeal under section 96 CPC has been filed against judgment & decree dated 07.01.2017 in Civil Suit No.371/2015 (55/2001) { Suresh Kumar & ors. vs. Phoolwanti Devi & ors), whereby the suit was rejected on ground of jurisdiction. Briefly stated, the appellants preferred a suit for declaration and cancellation of sale deed as well as injunction with respect to Hindu Joint Family property. It was also alleged in the plaint that the appellants and respondent No.1 were members of Joint Hindu Family of Munna Lal and during his lifetime, partition of the properties never took place. It was also alleged that Munna Lal during his lifetime purchased various properties in the name of husband of respondent No.1 Jawahar Lal as well as in the name of respondent No.1 herself, which were acquired from income of Munna Lalji. The properties so acquired by Munna Lalji were described in para 4 of the plaint.

2. It was also alleged in the plaint that the properties described in khasra No.7/18 were never made demarcation and these are adjacent to khasra No.7/19, which is apparent from mauka report dated 07.02.1999. It was also stated that on 20.11.1994, by means of family arrangement, the respondent No.1 had agreed that properties in khasra No.7/18 shall form part of the Joint Hindu Family properties.

3. It was also stated that the respondent No.1, during lifetime of her husband and after his death, never intended to support the joint family and after the death of her husband Jawahar Lalji, she separated herself from the Joint Hindu Family in the year 1995. On 29.09.1998, the respondent No.1 sold 25 bighas land situated at khasra No.7/18 for Rs. 2,50,000/- to the respondents No.2 and 3, which could not have been done, for the same being forming part of the Joint Hindu Family properties. It was further stated that half portion of khasra No.7/18 belongs to Rupi Devi, mother of appellant No.1 and the remaining portion was of respondent No.1. The Sale Deed in question was never executed by proper means and the same was questioned by appellants on various grounds.

4. It was also stated in the plaint that a revenue suit by Rupi Devi with respect to possession was preferred, in which various reports were called and as apparent from the reports so annexed with the plaint, the respondent No.1 was never in possession of the land in question. It was with these averments that the plaint was filed, with the prayer that the property may be declared as Joint Hindu Family property and consequently, equal shares at the instance of members of the Joint Hindu Family may be declared and further, the sale deed dated 29.09.1998 may be cancelled and injunction be issued against respondents.

5. The respondent No.1 preferred a counter-claim to the suit while the respondents No.2 and 3 filed a joint reply. In the counter-claim filed by the respondent No.1, it was averred that the property has not been partitioned. The respondent No.1 also stated that the properties at Points No.3 & 4 were not property of the Joint Hindu Family and those were purchased out of the income in her name as well as in the name of her husband, at the instance of her parents. It was also averred that the properties described at Points No.1, 2 & 5 were property of the Joint Hindu Family and therefore, the respondent No.1 also has a right to seek partition with respect to same, while denying other averments made in the plaint.

6. It was further averred in the counter-claim that it was at the instance of appellant Surendra Kumar, who insisted upon respondent No.1 to adopt his son, the present suit has been filed. The property comprising in khasra No.7/18 was property of respondent No.1 and the family arrangement dated 20.11.1994 was never accepted by the respondent No.1 and it was not a registered document. It was stated that after death of mother of the appellant Smt Rupi Devi, 1/3rd share of Rupi Devi merely was acquired by the respondent No.1 and