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2020 DIGILAW 621 (RAJ)

Satyanarayan Goyal v. Pukhraj Goyal

2020-09-03

ARUN BHANSALI

body2020
JUDGMENT Arun Bhansali, J. - These appeals are directed against judgment and decree dated 07.01.2009 passed by the Additional District Judge (Fast Track) No.3, Jodhpur, whereby the suit filed by Pukhraj for partition, possession and accounts, has been partly decreed and a preliminary decree has been passed declaring that the plaintiff- Pukhraj and defendant-Satyanarayan had half share each in the property situated at Jodhpur and plaintiff has 1/4th share and defendant has 3/4th share in the strip land situated in front of the house, for which the plaintiff was entitled for partition by metes and bounds. Further, the suit to the extent of partition of property situated at Bikaner and for accounts, was rejected. The plaintiff-Pukhraj filed a suit, inter alia, with the submissions that the parties to the suit were brothers, both were residing at house situated at Jodhpur. The plaintiff was elder brother and the defendant was younger. At the time of filing of the suit, the plaintiff was serving with the Maleria Department since 15.06.1973 and the defendant was engaged in the profession as a Lawyer. Father of the parties Sh. Bachhraj Ji died in the year 1977 and the mother Smt. Chhota Devi died in the year 1987. 2. It was claimed that Sh. Bachhraj Ji had acquired properties at Jodhpur alongwith his wife and in front of the house, strip land was purchased by the mother. Another property at Bikaner was purchased by Sh. Bachhraj Ji in a public auction. Sh. Bachhraj Ji had six sons and six daughters. For both the immovable properties and other movable properties, Sh. Bachhraj Ji executed a registered Will and bequeathed the properties to his wife Smt. Chhota Devi, who on death of Sh. Bachhraj Ji became owner of the properties. Smt. Chhota Devi by her registered Will dated 29.09.1981 bequeathed both immovable and movable properties to plaintiff and defendant equally. It is claimed that all the documents pertaining to the house, bank accounts remained with the defendant. It is claimed that in the Will, expenses of marriage of any sons or daughters were kept lien on the property situated at Bikaner. None of the other children were given any share in the property. 3. At the time of execution of the Will, both the parties and a sister Sharda were unmarried, however, defendant-Satyanarayan and sister Sharda got married during life time of mother. None of the other children were given any share in the property. 3. At the time of execution of the Will, both the parties and a sister Sharda were unmarried, however, defendant-Satyanarayan and sister Sharda got married during life time of mother. After death of the mother, the plaintiff got married. Initially, plaintiff alongwith his wife used to stay with the defendant, however, subsequently, he started living in the rear portion and a Pardi Wall was constructed between the two residential portions. It was claimed that the amount lying in the bank accounts of the mother on account of defendant being joint holder, came in his possession and only he was in possession of the entire accounts. 4. It was claimed that both the parties had equal share in the property left by their mother, the plaintiff had spend Rs. 62,000/- on his marriage, which amount was a charge on the Bikaner property, to which, he was entitled. It was indicated that qua the Bikaner property, the dispute was pending before the Court at Bikaner, regarding which, defendant had information. In the property situated at Jodhpur, after death of their father, the mother from her own resources, purchased strip of land from Urban Improvement Trust, which is part of the house and, therefore, in the entire house alongwith the strip land, both the parties have equal share. Allegations were made that defendant has initiated several legal proceedings including Civil and Criminal against the plaintiff and was harassing the plaintiff and various efforts made to seek partition have failed and, therefore, the suit was being filed. Ultimately, it was prayed that both immovable properties be partitioned by metes and bounds and expense of Rs. 62,000/-, which is charge on the Bikaner property be paid to him. The defendant be directed to produce accounts pertaining to the bank accounts of their mother. 5. The suit was resisted by the defendant-Satyanarayan. It was indicated that both the parties were living separately in the Jodhpur property, while the plaintiff was residing in the back portion, the defendant was residing in the front portion and there is a pardi Wall in between. It was admitted that the property at Jodhpur was purchased by father and mother, however, qua the strip land, it was denied that the same was purchased by the mother. It was admitted that the property at Jodhpur was purchased by father and mother, however, qua the strip land, it was denied that the same was purchased by the mother. It was claimed that the same was purchased by the defendant and the entire amount was paid for income of the defendant as the mother was not having any cash. The execution of the Will by the father and mother were admitted and that the property situated at Jodhpur was given to the parties in equal share. The defendant being in possession of the particulars about the bank accounts of the mother was denied. It was denied that she was in possession of any amount at the time of her death. Submissions were made regarding the plaintiff being in possession of a store and the goods contained therein. It was claimed that by Will dated 29.09.1981, the strip land was not partitioned and as the consideration was paid by the defendant, the same was of his exclusive ownership. It was denied that a sum of Rs. 62,000/- was charge on the Bikaner property. It was claimed that the defendant had spent a sum of Rs.1,70,000/- on the marriage of his sister and Rs.1,50,000/- on his own marriage and as such he was also entitled to receive the said amount from the said house. 6. Qua the house at Bikaner, it was admitted that the suit was pending before the Court at Bikaner. It was indicated that the house at Bikaner was taken possession by their brother Sudhir Chandra Goyal and the mother had to file suit for possession on 12.12.1983, regarding which, the defendant was bearing the expenses. After death of the mother on account of noncooperation by the plaintiff, the defendant alone had to file application for getting impleaded as legal representative. On account of disinterest qua the litigation, it was claimed that the plaintiff was not entitled to any share in the property at Bikaner. The allegations made regarding filing of the suits etc. were denied and it was submitted that on account of behaviour of the plaintiff, the suits and other proceedings were initiated. Ultimately, it was prayed that the suit be dismissed. 7. The trial court framed five issues. On behalf of the plaintiff, he himself was examined and defendant examined himself as DW-1 and one Chandra Prakash was examined as DW-2. 8. Ultimately, it was prayed that the suit be dismissed. 7. The trial court framed five issues. On behalf of the plaintiff, he himself was examined and defendant examined himself as DW-1 and one Chandra Prakash was examined as DW-2. 8. After hearing the parties, the trial court came to the conclusion that in the property situated at Jodhpur (other than strip land), the plaintiff and defendant had half share each and the plaintiff was entitled for partition by metes and bounds. Qua the strip land, the plea raised by the defendant regarding he alone having purchased the strip land was not accepted and it was held that as mother had half share in the strip land, based on the Will, both the parties were entitled to half share from the half share of the mother and half share belong to the defendant and, therefore, the plaintiff was entitled to 1/4th share in the strip land and the defendant was entitled to 3/4th share in the strip land. Qua the Bikaner property, it was held that as the property was in possession of brother Sudhir Chandra Goyal, qua which litigation was pending and as he was not party to the suit, the property at Bikaner, cannot be partitioned and once the suit is disposed of, the parties can file a fresh suit. It was found that the plaintiff has failed to prove his having spent Rs.62,000/- on his marriage and, therefore, he was not entitled for the said amount. Regarding the movable properties, it was held that as the plaintiff has failed to give any specific details qua the said property, he was not entitled to any partition. Qua the claim of the defendant that he had spent Rs.3,20,000/- on marriage of his sister and his own marriage, again for lack of any particulars, it was held that he was not entitled for any relief and, consequently, passed the decree as noticed hereinbefore. 9. Both the parties have filed the cross-appeals. Qua the claim of the defendant that he had spent Rs.3,20,000/- on marriage of his sister and his own marriage, again for lack of any particulars, it was held that he was not entitled for any relief and, consequently, passed the decree as noticed hereinbefore. 9. Both the parties have filed the cross-appeals. While the plaintiff-Pukhraj is aggrieved by getting only 1/4th share in the strip land qua the Jodhpur property, the trial court not decreeing the suit qua the Bikaner property and the amount of expenses incurred by him at the time of his marriage, the defendantSatyanarayan is aggrieved qua the 1/4th share in the strip of land decreed in favour of the plaintiff-Pukhraj and regarding the goods lying in the store room. 10. Learned counsel for Pukhraj, made submissions that the trial court committed error in not decreeing the suit qua the Bikaner property. 11. Submissions have been made that mere pendency of the suit for possession against a third party before the Court at Bikaner, could not be a reason for not decreeing the suit for partition between the parties and, therefore, to the said extent, the impugned decree was liable to be modified. 12. Submissions were also made that during the pendency of the present suit before the trial court, the Court at Bikaner had decreed the suit on 02.08.2007, the first appeal was dismissed on 09.04.2014 and the second appeal was dismissed by this Court on 16.07.2014 and on that count also, there is no reason now not to grant the decree for partition. 13. Further submissions were made that during the pendency of the present appeal, the defendant entered into an agreement to sale qua the Bikaner property for a sum of Rs.50 Lakh and received part consideration of Rs.11 Lakh. Based on which, the plaintiff had to file stay application, wherein by order dated 15.12.2016, the respondent was restrained from alienating the disputed property in any manner and it was directed that status quo shall be maintained in respect of the disputed property. 14. Further submissions were made that the trial court was not justified in decreeing only 1/4th share in the strip land based on the statements as it was claimed that the defendant had no money to make payment of the strip land and, therefore, the plaintiff was entitled to half share. 15. 14. Further submissions were made that the trial court was not justified in decreeing only 1/4th share in the strip land based on the statements as it was claimed that the defendant had no money to make payment of the strip land and, therefore, the plaintiff was entitled to half share. 15. Feeble submissions were also made regarding denial of the trial court to decree the suit to the extent of Rs.62,000/- spent on plaintiff s marriage. 16. Learned counsel for Satyanarayan made vehement submissions that that trial court was not justified in decreeing the suit qua Jodhpur property as, as per the plaintiff s own averments, the partition had already taken place. 17. Further submissions were made that the finding and decree regarding the strip of land is wholly baseless, inasmuch as, the Will in question does not deal with the said strip of land and as the said strip land was purchased by the defendant and only out of respect, name of the mother was got included in the saledeed, the plaintiff has no right in the said strip land. 18. Further submissions were made that as the strip land is not part of the bequeath made in the Will, without impleading all the legal heirs of mother to the present suit qua the said strip of land, the suit qua the strip land was not maintainable. 19. It was also submitted that the trial court has wrongly indicated that there was no specific plea that in the sale-deed qua the strip land, he got name of the mother included out of love and affection. With reference to para-8 of the written statement, it was indicated that specific plea in this regard was taken. 20. It was submitted that the mother had clearly indicated in her Will that she was left with no cash and, therefore, the same was enough proof to come to the conclusion that the strip land was purchased by the defendant alone and, therefore, the judgment impugned qua the strip land deserves to be quashed and set aside. 21. Qua the property at Bikaner, vehement submissions were made with reference to the conduct of the plaintiff, it was submitted that mother had filed the suit for possession against her son/brother of the parties Sudhir Chandra Goyal for possession. 22. 21. Qua the property at Bikaner, vehement submissions were made with reference to the conduct of the plaintiff, it was submitted that mother had filed the suit for possession against her son/brother of the parties Sudhir Chandra Goyal for possession. 22. During the pendency of the said suit, the mother died and as the plaintiff-Pukhraj did not join in filing the application for impleadment as legal representatives of their mother, the defendant alone was impleaded as legal representative of deceased mother in the suit and the plaintiff herein was subsequently added as defendant to the suit, the suit was decreed on 02.08.2007, wherein the trial court decreed the suit only to the extent of half share as the plaintiff herein had not joined the proceedings before the trial court at Bikaner as plaintiff. 23. Feeling aggrieved, Sudhir Chandra Goyal and Satyanarayan both filed appeal. The appellate court by its judgment dated 19.04.2014, while dismissing the appeal filed by Sudhir Chandra Goyal, accepted the appeal filed by Satyanarayan and instead of half portion in the suit property, decreed the suit qua the entire property. Sudhir Chandra Goyal filed second appeals before this Court and both the appeals were withdrawn on 16.07.2014 and time was granted to vacate the suit premises by 30.06.2016. 24. It was submitted that while the plaintiff-Pukhraj did not participate in the proceedings for possession before the trial court, first appellate court and in the second appeal, he executed a gift-deed dated 23.02.2015 in favour of sons of Sudhir Chandra Goyal qua half portion of the house situated at Bikaner and, thereafter, filed second appeal against the decree passed by the first appellate court dated 19.04.2014 alongwith sons of Sudhir Chandra Goyal, which appeal was also dismissed by this Court on 08.12.2015. 25. It was submitted with reference to the above that on account of the conduct of the plaintiff-Pukhraj, qua the Bikaner property, he is not entitled for any relief from this Court. 26. It was submitted that the relief claimed qua the Bikaner property on account of the litigation initiated by the mother and contested by the defendant, is barred by principles of resjudicata. Reference was made to Explanation-IV under Section 11 CPC. 27. 26. It was submitted that the relief claimed qua the Bikaner property on account of the litigation initiated by the mother and contested by the defendant, is barred by principles of resjudicata. Reference was made to Explanation-IV under Section 11 CPC. 27. Submissions were made that as in the suit filed at Bikaner, the issue involved was possession of the Bikaner property and as Pukhraj did not take any interest in the said litigation, he was now barred from seeking any relief qua the said property. 28. Further submissions were made that the conduct of the plaintiff, amounts to waiver of his rights qua the property at Bikaner and, therefore, on that count also, the plaintiff-Pukhraj is not entitled to any relief qua the property at Bikaner and, therefore, the appeal filed by the plaintiff deserves dismissal. 29. Reliance was placed on Maghraj Calla v. Kajodi Mal, (1994) AIR Raj. 11 ; National Highway Authority of India v. Rajasthan Spinning and Weaving Mills RSWM Ltd.: CW No.2382/2018, decided on 04.02.2019 and Galada Power and Telecommunication Ltd. v. United India Ins. Co. Ltd. & Anr, (2016) AIR SC 4021 . 30. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 31. So far as the title to the suit properties at Jodhpur (other than strip land) and Bikaner are concerned, it is not in dispute that the same after death of Sh. Bachhraj Ji, father of the parties were owned by Smt. Chhota Devi, mother of the parties. The sale-deed of the strip land in front of the Jodhpur property dated 15.04.1978 (Ex.-5) was executed by Urban Improvement Trust, Jodhpur in favour of Smt. Chhota Devi and defendantSatyanarayan. 32. Smt. Chhota Devi executed her Will dated 29.09.1981, which was registered with Sub-Registrar, Jodhpur on 14.10.1981. Smt. Chhota Devi, who had twelve children, bequeathed her entire movable and immovable properties to her sons Pukhraj and Satyanarayan and directed that both would be entitled to 50% share in the property situated at Jodhpur and qua the Bikaner property after creating charge qua the marriage expenses of unmarried children, both Pukhraj and Satyanarayan were bequeathed the Bikaner property in equal share. 33. 33. The legal implication of execution of the Will by Smt. Chhota Devi, is that immediately on her death based on the testamentary disposition, properties at Jodhpur and Bikaner vested in Pukhraj and Satyanarayan in equal share. The execution of Will by mother is not under dispute, rather both the parties have accepted and relied on the Will. As such, the filing of the suit by Pukhraj seeking partition of the suit property i.e. house at Jodhpur and Bikaner, cannot be faulted, inasmuch as, with the death of Smt. Chhota Devi, both Pukhraj and Satyanarayan became co-owners of the two properties, as such either of the parties were entitled to seek partition by metes and bounds so as to get demarcated the portions of the suit properties, which they got by way of testamentary disposition, so as to create exclusive right to a part of the property in lieu of the common right, which they previously had qua the whole properties. 34. The suit properties need to be dealt with separately as qua each property, different issues have been raised. (A) Property at Jodhpur (other than strip of land):- It is not in dispute that the property in question is co-owned as the same belonged to Smt. Chhota Devi, who bequeathed the same to Pukhraj and Satyanarayan with 50% share each. Qua the said property, the plea raised by defendant-Satyanarayan is that of prior partition. For claiming prior partition, submissions have been made essentially based on the fact that on account of disputes between the parties, a pardi wall was constructed in the house and that both the parties were in possession of one part each whereby while the plaintiff-Pukhraj came in possession of the portion at the back, the defendant-Satyanarayan came in possession of the front portion. 35. The plea based on the fact that on account of inter se dispute and bickering the parties started living in different portions of the same house and a temporary wall was constructed would amount to partition of the property by metes and bounds so as to disentitle the plaintiff to seek partition of the property, cannot be accepted, inasmuch as, this is not the case of the defendant that the temporary wall was constructed after partitioning the property by metes and bounds. On the other hand during the course of submissions, it was claimed by counsel for the defendant that in fact the defendant is entitled to a store in the house, which continues to be in possession of the plaintiff alongwith the goods lying therein. 36. It is settled that a partition is one thing and separate possession of the joint properties by the co-owners for convenience of possession is another. Such amicable arrangement for separate possession for convenience of the cosharers by itself cannot stand in the way of a decree for partition so long as it is not found that it was in conformity with the shares of the respective parties. (see Jolfa Bibi v. Ajaluddin, (1924) 29 CalWN 229 and Sarat Chandra Chattopadhyaya v. Ganga Charan Chakravarty, 43 CWN 181). Therefore the plea raised claiming prior partition on the facts alleged, cannot be accepted. The trial court was, therefore, justified in ordering for partition of the property at Jodhpur by metes and bounds. (B) Strip of Land at Jodhpur :- As noticed hereinbefore, while the plaintiff claims half share in the strip land, the defendant claims that the strip land was purchased by him alone and only on account of affection/respect, name of the mother was got included in the sale-deed as such he alone has right in the said land. 37. Further, it is claimed that the Will does not deal with the strip land and on account of non-impleadment of necessary parties i.e. 10 other brothers and sisters, as to the extent of strip land, the succession would be intestate, the suit qua the strip land was liable to be dismissed. 38. A bare look at the Will (Ex.-2) shows that the property at Jodhpur has been described as under:- "IMAG" 39. A perusal of the description would indicate that the testator had clearly indicated that the strip land was purchased by the testator alongwith her son Satyanarayan vide sale-deed dated 15.04.1978 and while describing the boundaries, it is specifically indicated that the house and land were bounded on all the four sides as per the indication made in the Will. 40. While indicating the bequest, testator indicated qua the property at Jodhpur as under:- "IMAG 1" 41. 40. While indicating the bequest, testator indicated qua the property at Jodhpur as under:- "IMAG 1" 41. A perusal of the disposition would indicate that the deceased had bequeathed her entire immovable and movable properties to her sons Pukhraj and Satyanarayan and indicated that the house at Jodhpur would be equally distributed. Again in the same paragraph it was reiterated as under:- "IMAG 2" 42. The description of the property and the disposition thereafter, is quite categorical, wherein the testator has indicated her ownership of the house and that the strip land was purchased by her with her son Satyanarayan, which was followed by indication that the property would be owned by both Pukhraj and Satyanarayan equally, which leaves no manner of doubt that the Will in question clearly bequeathed the house alongwith the strip land in terms of the disposition made. As such the plea raised in this regard by the defendant-Satyanarayan, cannot be countenanced. Consequently, the plea of non-impleadment of the necessary parties also falls to the ground. 43. The plea raised that the strip land was purchased by funds provided by the defendant-Satyanarayan and name of Smt. Chhota Devi was included merely out of affection/respect and, therefore, the entire property belonged to the defendant, also apparently has no basis. The trial court rightly came to the conclusion that the plea raised regarding inclusion of the name on account of affection has not been taken in written statement, inasmuch as, the plea raised in the written statement reads as under:- "IMAG 3" 44. From the above, though the claim of amount having been paid by the defendant has been raised, the plea of inclusion of name on account of affection/respect has not been taken and, therefore, in absence of any plea in this regard, the same cannot be countenanced. 45. The submissions made by learned counsel for Pukhraj that the strip of land in fact could only be sold to Smt. Chhota Devi as admittedly the plot in question after death of Sh. 45. The submissions made by learned counsel for Pukhraj that the strip of land in fact could only be sold to Smt. Chhota Devi as admittedly the plot in question after death of Sh. Bachhraj Ji, based on his Will, belonged to Smt. Chhota Devi alone and in terms of Rule 23 of the Urban Improvement Trust (Disposal of Urban Land) Rules, 1974, the strip land could only be allotted to the owner of the adjoining plot in question and, therefore, in fact the name of Satyanarayan appears to had been got included in the sale-deed, which was essentially not required/could not have been included, has much substance and is, therefore, upheld. 46. Another plea raised by Satyanarayan that the deceased Smt. Chhota Devi had no money available for purchasing the strip land based on the contents of the Will apparently has no basis. The Will is dated 29.09.1981, wherein she has indicated that she does not have much cash left after having married her children, whereas the sale-deed (Ex.-5) is dated 15.04.1978 i.e. more than 3 years prior to the execution of the Will and as the indication about not having cash in the Will is on the date of execution of the Will, no presumption can be drawn that even in the year 1978, Smt. Chhota Dev had no cash. 47. Learned counsel for Pukhraj made submissions that in fact Satyanarayan was only having part-time job and was studying as well during the period when the strip of land was purchased, which aspect is fortified from the cross-examination of Satyanarayan, which aspect was refuted by learned counsel for Satyanarayan relying on un-exhibited documents on record. 48. Be that as it may, as the sale-deed (Ex.-5) stands in name of Smt. Chhta Devi and Satyanarayan and it is not the case of Pukhraj in the pleadings that name of Satyanarayan has been wrongly included in the sale-deed (Ex.-5), the finding recorded by the trial court regarding the disposition of the strip land i.e. 1/4th share to Pukhraj (half share from the share of Smt. Chhota Devi, who had half share in the strip land) and 3/4th share to Satyanarayan (1/4th share from Smt. Chhota Devi and half share on account of sale-deed) cannot be faulted. The finding of half share each of Smt. Chhota Devi and Satyanarayan by the trial court in the strip land based on their names as transferees in the sale-deed, also cannot be faulted on account of express provisions of Section 45 of the Transfer of Property Act, 1882, which inter alia provide that in the absence of evidence as to the interests in the fund, to which the co-owners are respectively entitled or as to the shares, which the co-owners have respectively advanced, such co-owners shall be presumed to be equally interested in the property. 49. In view thereof, as the names of Smt. Chhota Devi and Satyanarayan finds mention in the sale-deed (Ex.-5) as coowners, the factum of their 50% ownership each, cannot be denied. 50. In view of the above discussion, the finding of the trial court qua the strip of land also does not call for any interference. (C) Property at Bikaner :- It is not in dispute that the property in Bikaner was owned by Smt. Chhota Devi and she bequeathed the property to both the sons in equal share and as noticed hereinbefore, immediately on death of Smt. Chhota Devi, the property in question vested in both Pukhraj and Satyanarayan as co-owners in equal shares. 51. The trial court dismissed the suit qua the said property only on account of pending litigation when in fact the trial court at Bikaner had already decreed the suit by its judgment dated 02.08.2007 though in part only. The denial by the trial court to decide the claim of partition only on account of pendency of the suit for possession of the property was wholly contrary to law, inasmuch as, the issue as raised was required to be decided in accordance with law irrespective of the pendency of the suit, as the direction qua the property would have been governed by the ultimate decision of the other suit. 52. The right of the plaintiff-Pukhraj in the property at Bikaner is sought to be disputed by the defendant-Satyanarayan only on account of subsequent events/his conduct and the decision of the suit/appeal for possession by the Courts at Bikaner and dismissal of second appeal by this Court. 53. 52. The right of the plaintiff-Pukhraj in the property at Bikaner is sought to be disputed by the defendant-Satyanarayan only on account of subsequent events/his conduct and the decision of the suit/appeal for possession by the Courts at Bikaner and dismissal of second appeal by this Court. 53. A bare perusal of the facts as noticed hereinbefore and the judgments and decrees passed would reveal that while the trial court at Bikaner granted decree of possession of 50% of the premises only on account of the fact that Pukhraj chose not to get impleaded as legal representative of deceased Smt. Chhota Devi in the pending suit, which suit was for possession only. The mistake of the trial court was corrected by the appellate court at Bikaner, by importantly observing that one of the co-owners is entitled to file suit for possession and in those circumstances, the decree, which was passed by the first appellate court reversing the partial dismissal of the suit would have to be read in the context that Satyanarayan was granted the decree for possession of the entire property as co-owner and, therefore, the decisions of the suit/appeal by the trial courts and further dismissal of the second appeal in a suit for possession, wherein Satyanarayan as legal representative of Smt. Chhota Devi was granted the decree as co-owner cannot by itself enlarge the status of Satyanarayan from a co-owner to full owner of the entire property beyond his share as bequeathed by Smt. Chhota Devi. 54. Admittedly, Satyanarayan got impleaded as party based on the Will and, therefore, he cannot claim any right beyond what was bequeathed to him in the Will. 55. So far as the plea raised pertaining to the res-judicata as raised by learned counsel for Satyanarayan based on Explanation-IV to Section 11 CPC is concerned, the plea raised in this regard also has no basis, inasmuch as, as noticed hereinbefore, the suit filed by Smt. Chhota Devi was a suit for possession, which was partly decreed, in appeal, the same was decreed in toto and merely because Pukhraj did not join as plaintiff in the said suit for possession, cannot dilute his title to the suit property, which had vested in him on the death of Smt. Chhota Devi and it cannot be said that he had in any manner abandoned his title to the suit property. 56. 56. Filing of appeal alongwith the sons of the brother-Sudhir Chandra, for the reliefs prayed therein, also in no manner dilute the said position. 57. Explanation-Iv provides that any matter, which might and ought to have been made ground of defense or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a former suit for the purpose of application of Section 11 CPC. 58. As the title to the suit property insofar as inter se between Satyanarayan and Pukhraj was never in issue in the previous suit and the suit filed by Smt. Chhota Devi was a suit for possession only, the plea raised based on provisions of Section 11 CPC and its Explanation-IV, is absolutely misplaced. Similarly the reliance placed on judgments in the case of Maghraj Calla (supra) and National Highway Authority of India (supra), which are based on totally different facts, also have no application. 59. The plea of waiver based on judgment in the case of Galada Power and Telecommunication Ltd. (supra), also has no basis as insofar as the title of Pukhraj to the properties is concerned, the same stood vested in him immediately on death of Smt. Chhota Devi and only on account of his not joining in the proceedings of the suit for possession as plaintiff, though he was impleaded as defendant to the suit, cannot divest him of the title and be taken as a waiver on part of Pukhraj to seek partition with consequential relief. 60. The judgment in the case of Galada Power and Telecommunication Ltd. (supra), dealt with the plea available based on stipulation in the contract, which was not put forth by the party, on account of which it was laid down that the same would amount to waiver, however, the said principle would have no application to the facts of the present case. 61. In view thereof, the finding of the trial court denying the partition of the property at Bikaner cannot be countenanced and the same is, therefore, reversed and the plea raised by Satyanarayan based on subsequent events stands rejected. (D) Marriage Expenses :- So far as the feeble pleas raised by learned counsel for Pukhraj and Satyanarayan in relation to the marriage expenses purportedly incurred by them and the same having charge on the property at Bikaner, have apparently no basis. (D) Marriage Expenses :- So far as the feeble pleas raised by learned counsel for Pukhraj and Satyanarayan in relation to the marriage expenses purportedly incurred by them and the same having charge on the property at Bikaner, have apparently no basis. The trial court was justified in coming to the conclusion that both the parties have failed to lead any evidence to substantiate having incurred the expenses as claimed by them and, therefore, the said findings do not call for any interference. 62. In view of the above discussion, S.B. Civil First Appeal No.856/2011 filed by plaintiff-Pukhraj is partly allowed. The decree passed by the trial court is modified to the extent that besides half share in the house at Jodhpur and 1/4th share in the strip of land at Jodhpur, plaintiff-Pukhraj is also entitled for half share in the property at Bikaner and their partition by metes and bounds. 63. S.B. Civil First Appeal No.259/2009 filed by defendantSatyanarayan is dismissed. No order as to costs.