ALI AMAD Vs. SINDHI EBRAHIM KASAM

JUDGEMENT

(1.) This is an appeal by the original defendants Nos. 1 (1) to 1 (4) and the defendant No. 3 of the regular civil suit No. 87 of 1978 filed by the respondent No. 1 Jbrahim Kasambhai for partition of the properties of one Keshar Ahmed, the common predecessor of the parlies. The learned trial Judge passed the following order:-- "It is hereby declared that the pltf. and deft. No. 5 Ismail Kasam each has share of 5.21 Ps. in a rupee in the suit S Nos. 254/1 and 254/2. The branch of Ali Amad (i.e. present defts. Nos. 1A to ID collectively) has a share of 50 Ps. in a rupee in the suit S. Nos. It is further declared that deceased deft. No. 2 Kha-tija has a share of 8.59 Ps. in a rupee in the suit S. Nos. It is further declared that Aba Keshar deft. No. 3 has share of 14,59 Ps. in a rupee in the suit S. Nos. and also that deft. 6 Noorbai and deceased Mariam, the mother of deft. No. 7 each gets 7.29 Ps. in a rupee as their respective shares in the suit S. Nos. Ashabai, the mother of the pltf., has also a share of 1.83 ps. in a rupee in the suit S. Nos. As the suit lands are agricultural lands, the Collector, Juna-gadh District, Junagadh be appointed to effect partition of the suit S. Nos. as per the respective shares of the aforesaid parties. The Collector is directed that as far as possible, 32 gunthas of land which are sold to deft. No. 4 be given into the share of the heirs of AH Amad Aba Keshar and Khatija deceased deft. No. 2. A true copy of the decree be sent to the Collector, Junagadh.....". It is to be noted that Ashabai, who has been declared to have 1.83 Ps. in a rupee in the suit agricultural lands, was never made a party to this litigation.

(2.) Being aggrieved by the aforesaid preliminary decree, these appellants had preferred the Civil Appeal No. 51 of 1977 in the District Court, Junagadh. The learned appellate Judge allowed that appeal only notionally and or nominally. The order reads as follows :-

(3.) Mr. Vyas, the learned advocate appearing for the appellant before me, has canvassed the following points of law:-