GAJRANI AND OTHERS Vs. RAM RATI AND OTHERS

JUDGEMENT

(1.) THIS appeal, which came up for hearing before Mithan Lal, J. has been referred by him to a larger bench, because the question involved in it is of general importance and has not been answered by any authoritative decision.

(2.) RESPONDENT No. 1 sued the appellants for partition of joint sir and khudkasht land claiming that she had a one-third share in it and that the appellants had the remaining two-third share. The suit was contested by the appellants who contended that the plaintiff-respondent was not in possession at all, that they had been in exclusive and adverse possession for more than 12 years and that the respondent was not entitled to partition. The respondent claimed to have inherited one-third share in the land in dispute from her father, who had died more than 25 years ago and who was a co-sharer along with the appellants of the land in dispute. The appellants did not plead either that the respondent never obtained possession over her share after inheritance or that she was dispossessed after entering into possession. They vaguely pleaded that they were in adverse possession for more than 12 years. They did not deny possession of the respondents father. They also did not plead that they were in possession from a particular time. Their counsel in his examination under O. 10, R. 2 stated clearly that the respondent had one-third share once and retained it if not lost by adverse possession.

(3.) THE relevant provisions in the Code of Civil Procedure are contained in O. 41 and O. 3. When an appellate Court does not dismiss an appeal summarily it should fix a date for the hearing of it and notice of the date should be affixed in the appellate Court house and should be served on the respondent or on his pleader; vide Rr. 12 and 14 of O. 41. Rule 17 lays down that