HANUMANTAPPA DYAMAPPA JADAR Vs. MALLAVVA

JUDGEMENT

(1.) The petitioner, who is the second defendant in O.S. No.369/1973, has filed this application under O.20, R.18, C.P.C. for declaration of his one-seventh share in the suit schedule property and in pursuance of such a declaration for a direction to divide the properties by metes and bounds and the petitioner be put in his separate exclusive possession of the suit schedule property which will be allotted to his share. O.S. No.369/73 was a suit for partition. It was decreed that all the parties to the suit would be entitled to one-nineth share of the suit schedule property. It is common ground that there was no final decree and the decree in O.S. No.369/73 was only a preliminary decree. Before passing the final decree it is not disputed that the plaintiff and fourth defendant died (namely Mallavva-plaintiff, Yashvant Dyamappa Jadar-fourth defendant).

(2.) It is brought to my notice that petitioner's share on the death of plaintiff and fourth defendant has enlarge from one-nineth to one-seventh share of the suit schedule property. It is in these circumstances and on account of the subsequent events after the preliminary decree that the petitioner was obliged to file this application, requiring the Court to draw a preliminary decree enlarging the shares of parties from one-nineth to one- seventh share.

(3.) The application filed by the petitioner was numbered as Misc. Application No. 267/84. The learned Judge, First Addl. Munsiff, Hubli, raised two points for consideration:1. Whether the applicant proves that on account of death of respondents Nos.1 and 4 the share of the applicant has enlarged and the applicant is entitled to the declaration of his one-seventh share in the suit schedule properties? 2. Whether this miscellaneous application is maintainable in the present form?