VASANTI AND ORS. Vs. MANISH AND ORS.

JUDGEMENT

(1.) This appeal is filed by the defendants 1, 4 and 5 against the judgment and decree dated 02.11.2010 made in R.A. No. 54/2005 on the file of the Principal Civil Judge (Sr.Dn.), Karwar, confirming the judgment and decree dated 30.11.2005 made in O.S. No. 80/1995 on the file of the Civil Judge Qr.Dn.), Karwar, decreeing the suit of the plaintiffs declaring that plaintiffs 1 to 3 together defendant No. 1 and defendants 4 to 6 are having 1/5th share in the suit schedule properties and the land bearing Sy. No. 30/5 of Makheri village shall be allotted to the share of defendant No. 4 and in the remaining suit lands, the plaintiffs 1 to 3 together and defendant No. 1 can include 1/5th share of defendant No. 4.

(2.) The respondents 1 to 3, who are the plaintiffs in the trial court filed O.S. No. 80/1995 for partition and declaration and consequential relief of injunction, against the present appellants and others, contending that the 1st plaintiff is the legally wedded wife of late Manohar Bandekar and plaintiffs 2 and 3 are the sons of plaintiff No. 1 and late Manohar Bandekar. The husband of 1st plaintiff -Manohar Bandekar is the son of 1st defendant and brother of 2nd defendant. The husband of 1st plaintiff died on 27.11.1994 and thereafter, the plaintiffs are residing separately in the portion of the joint family house, which is an ancestral property. The suit schedule properties at Sl. Nos. 1 to 4 in 'A' schedule are the ancestral properties and the lands were the tenanted in the name of father -in -law of plaintiff No. 1 -Ganesh Bandekar, who was cultivating the said lands and he expired on 06.09.1974. The suit properties are mutated in the name of defendant No. 1 and the name of defendant No. 1 was entered in the record of rights of the suit lands as the undivided family manager. The 1st defendant filed Form No. 7 before the Land Tribunal in her capacity as the undivided family manager for and on behalf of the joint family. Accordingly, the Land Tribunal granted occupancy rights. She was declared as tenant and issued Form No. 10 and also contended that there is a joint family house in the suit land.

(3.) The plaintiffs further contended that the suit schedule item Nos. 3 and 4 properties are the ancestral properties, which were held by late Ganesh Bandekar and on his death, the said properties were entered in the name of 1st defendant and there is no partition in respect of suit schedule properties and therefore, the plaintiffs are entitled to equal share in the joint family properties and suppressing the material true facts, with an intention to sell the properties and cheat the plaintiffs, defendant No. 1 had made preparations to sell the land, standing trees, etc. Therefore, the plaintiffs were constrained to issue legal notice on 31.07.1995, which was duly served on the defendants and they have not replied to the said notice, etc.