ROSHANBI Vs. USMANSAB SHAIKAJI ATTAR

JUDGEMENT

(1.) THIS Second Appeal is by the plaintiffs being aggrieved by the Judgment and Decree passed by the II Addl. Civil Judge, (Sr. Dvn. ,) Belgaum, in R. A. No. 75/1988 allowing the appeal filed by the defendant and dismissing the suit of the plaintiffs.

(2.) THE plaintiffs have filed a suit for partition and separate possession of their 7/8th share in the suit property. The suit property is a residential house bearing CTS. No. 883/a and 883/b situate at Aralikatti Deshpande Galli, Belgaum. The original propositus - Shaikji had two wives namely halimabi and Roshanbi. The defendant is the son of Halima Bi, the first wife of Shaikji. The plaintiffs - 2 to 8 are the children of second wife who is plaintiff No. 1 - Roshanbi. The relationship between the plaintiffs and the defendant is that the defendant is the step - son of plaintiff No. 1. Plaintiffs - 2 to 8 are the step brothers. The suit property was said to be purchased by Shaikji on 28. 9. 1926 and he died in the year 1969. It appears that the mother of the defendant halimabi died prior to Shaikji and after that, Shaikji married plaintiff No. 1. Another brother of defendant namely, Umarsab also died prior to Shaikji. It is stated that there was a division effected, by way of family arrangement, in respect of suit property bearing CTS No. 883/a and 883/b in the year 1979 and there is no partition in the suit house and since there was some misunderstanding between the parties, they started living separately from the plaintiffs. According to the plaintiffs, there was no division in the suit house by metes and bounds. Further it is stated that the plaintiffs together have got 7/8th share and defendant has got 1/8th share in the suit property and though the plaintiffs requested the defendant to effect partition and allot separate possession, the defendant did not do so. As such, they have sought for equitable partition and separate possession.

(3.) ACCORDING to the defendant, while admitting that he is staying separately in CTS No. 883a, he is residing there from 1957 onwards and not from 1979. He has also admitted that the suit property earlier was bearing No. 883. According to him, after the marriage of Shaikji with plaintiff No. 1, there was a partition and according to the said partition, the property is enjoyed separately by the parties. It is contended by defendant that the division made in the City Survey records, is not challenged by the plaintiffs at any time. As such, according to the defendant, there was a partition during the life time of Shaikji.