ORDER

With the consent of learned counsel for the parties, arguments are heard finally.

This second appeal by the appellant/defendant No.1 under Section 100 of the Code of Civil Procedure, 1908 is against the judgment & decree dated 15.09.2017 passed in Civil Appeal No.22-A/2016 (Kamal Malviya & Others Vs. Bhawarlal Malviya & Others) & Civil Appeal No.23-A/2016 (Bhawarlal Malviya Vs. Kamal Malviya & Others) by the District Judge, Sehore (MP) arising out of the judgment & decree dated 16.10.2015 passed in Civil Suit No.12-A/2014 (Kamal Malviya & Others Vs. Bhawarlal Malviya & Others) by the IInd Additional Judge, Sehore to the Court of Ist Civil Judge, Class-I, Sehore (MP).

2. Brief facts of the case are that the plaintiffs (respondents herein) filed a suit for partition, declaration and permanent injunction and pleaded that house constructed on Plot No.230, Sheet No.85 in Dhobipura, District Sehore (MP) is registered in the name of Late Babulal. Plaintiffs & defendants are his legal successors. House No.136 was purchased by their father in the name of Kamal, Balmukund, Bhawarlal and Kailash on 10.12.1974. Kailash was unmarried and he died issue-less. A mutual partition had taken place between plaintiffs & Bhawarlal (defendant No.1 and appellant herein). In partition, they were give some rooms and they are in possession of the same. After the death of Balmukund, plaintiffs constructed house on their portion. Plaintiffs & Bhawarlal (defendant No.1) are share holders of 1/3 – 1/3 part of the house. House No.136 is also of joint ownership. As such, civil suit was filed seeking partition of House No.230, situated at Sheet No.85, Dhobipura, Sehore & House No.136.

3. The suit was contested by respondent No.1 by filing written statement alleging that house constructed on plot No.230 was of the ownership of Babulal, but he had made an Oral Will of the same in favour of defendant No.1 Bhawarlal as he had taken his care in old age and since then, he is title-holder and is in possession of the house. It was further averred that House No.136 was purchased by Bhawarlal (defendant No.1) alone from his earnings on 10.12.1974 from Noorjahan. No consideration amount of said sale-deed was paid by Kamal, Balmukund and Kailash. Kailash and Kamal, at the time of purchase of house, were minor and they had no source of income. Their names were got recorded in the sale-deed only for the name-sake. Kamal is residing in Bhopal for last 25 years. He had given Rs.20,000/- <br/>

to Kamal for purchase of the house at Bhopal subject to condition that he will never claim his share in both the houses.

4. Learned trial Court after framing the issues reached to the conclusion that house situated at Plot No.230, Sheet No.85, Dhobipura, Sehore is an ancestral property and plaintiffs & defendant No.1 Bhawarlal are entitled to 1/5 share of the house. It reached to the conclusion that plaintiffs have failed to prove that they are joint owners of the House No136. The mutual partition was not found proved. Thus, it decreed the suit with respect to house constructed on Plot No.230 and declared plaintiffs & defendant No.1 owner of the 1/5 share of the house, but dismissed the suit with regard to House No.136.

5. Both the parties preferred appeal before the First Appellate Court which, after appreciating the evidence once again, analyzing the findings recorded by the trial Court, reached to the conclusion that suit with respect to house constructed on Plot No.230, Sheet No.85, Dhobipura, Sehore has been rightly decreed by the trial Court. It partly allowed the appeal filed by the appellant Kamal Malviya and modified the judgment & decree passed by the trial Court and decreed the suit with regard to House No.136 also holding that plaintiffs are entitled to 1/5 share in the house and are also entitled for separate possession after getting the houses partitioned.

6. It is vehemently contended by learned