KHATAL SAHEB WD KHADIR SAHEBINAMDAR Vs. AMEER SAHEB

JUDGEMENT

(1.) this appeal is preferred by the appellants who were the plaintiffs in the trial court against the judgment and decree dated 18-10-1982 passed by the principal district judge, belgaum, in r.a. No. 19 of 1981 allowing the appeal and setting aside the judgment and decree dated 31-3-1981 passed by the principal civil judge. Belgaum, in o.s. No. 28 of 1968.

(2.) I have heard the learned counsel for the appellants and the learned counsel for the respondents and perused the records of the case.

(3.) the plaintiffs filed a suit for partition and separate possession of their 2/5 share in the suit schedule properties referred to in schedule-a for partitioning by metes and bounds on the averments that one gousmia who was the common ancestor of the plaintiffs and the defendants and owner of those properties died leaving behind him khanjabi, imamsaheb and khadarsaheb. The plaintiffs are the sons of khadarsaheb whereas the defendants are the heirs of imamsaheb. The case of the plaintiffs is that on the death of gousmia, imamsaheb got 2/5 shares, khadarsaheb got 2/5 share and khanjabi got 1/5 share and imamsaheb died on 11-12-1965 leaving behind his widow maktumbi the 13th defendant and other sons and that during the lifetime of imamsaheb he was looking after the property and also looking after the plaintiffs and the plaintiffs are in possession of r.s. No. 22 and the rest of the lands are in possession of the tenants and that since defendants-1 to 14 are not heeding to the demands of the plaintiffs for partition and separate possession of their share, they have filed this suit. Defendant-15 remained ex parte, defendants-1 to 14 filed a common written statement denying that the plaintiffs are the children of khadarsaheb and khadarsaheb was the son of gousmia. According to the contention of the defendants, deceased imamsaheb got most of the properties from his deceased mother aminabi under a will executed by her and he was the sole owner in exclusive possession of these properties and these are the watan properties and they have been regranted to imamsaheb and on the basis of these contentions, amongst others, they prayed for the dismissal of the suit. The trial court decreed the suit of the appellants. The lower appellate court, in appeal by the defendants, set aside the judgment and decree of the trial court and dismissed the suit of the appellants. Hence this appeal.