SAHEBRAO S/O KONDIBARAO HAMBARDE Vs. SOW NILAVATI

JUDGEMENT

(1.) Appellants who are original defendant Nos. 5/1 to 5/3 have initially filed this Second Appeal aggrieved by the judgment and decree dated 15/05/2018 passed by the District Judge-2, Nanded in Regular Civil Appeal No. 289 of 2012, thereby allowing the said appeal and setting aside judgment and decree dated 18/09/2012 passed by the Jt. Civil Judge, Junior Division, Nanded in Regular Civil Suit No. 479 of 2009 dismissing the said suit and ultimately decreeing the said suit filed by present respondent No.1 against present respondent Nos. 2 to 4, 6, 7 and 9. The respondent Nos. 5/1, 5/2 and 8 have been subsequently transposed as appellants Nos. 2/1, 2/2 and 3 respectively.

(2.) Learned counsel appearing for the appellants submitted that respondent No.1 filed above said suit for partition, separate possession of share in the suit properties i.e. agricultural land Gat Nos. 18, 444 and 397 situated at Vishnupuri, Tq. Nanded against the appellants and the respondent Nos. 2 to 4, 6, 7 and 9. She had claimed 1/6 share in the suit properties. So also, she sought relief of declaration that sale deed bearing No. 386 dated 13/05/2009 executed by defendant Nos. 5/2 and 5/3 in favour of defendant No. 8 in respect of 52 Are land of Gat No. 18 and sale deed bearing No. 8551 dated 10/12/2008 of 63 Are executed by defendant Nos. 1, 6 and 7 in favour of defendant No. 9 are in effective to the extent of plaintiff's share and to declare that they are not binding on her share. So also, she claimed perpetual injunction to restrain the defendant Nos. 1 to 9 from alienating or creating any third party interest over the suit properties. Learned counsel appearing for the appellants further submitted that defendant No. 1-Balaji, defendant No. 2- Govindrao, defendant No.4- Ganeshrao and defendant No. 5-Sahebrao are brothers of the plaintiff and defendant No. 3- Kalavatibai is another daughter of Kondiba Hambarde father of the plaintiff. He further submitted that two daughters of Kodniba Hambarde and sisters of plaintiff, namely, Anusayabai and Shantabai are dead. It is submitted that defendant No. 4-Ganeshrao and defendant No. 5-Sahebrao are also dead and their LR's were brought before the trial Court. According to learned counsel it was the case of the plaintiff that she is daughter of Kondiba Hambarde. The suit properties are ancestral properties and therefore, as Kondiba Hambarde died 15 years prior to the suit plaintiff and defendant Nos. 1 to 5 his legal heirs and successors have right in the suit properties. It is submitted that defendant Nos. 1, 2, 4, 5, 6 and 7 had resisted the suit on the grounds that there was partition of the properties during life time of Kondiba Hamabarde, that plaintiff is not successor of Kondiba Hambarade and she is not daughter of Kondiba. Therefore, she has no right to claim partition of suit properties and share in the suit properties. They have prayed to dismiss the suit. They have also contended that suit is bad for non-joinder of necessary parties as the legal representatives of Anusayabai and Shantabai daughters of Kondiba are not made parties to the suit.

(3.) Learned counsel appearing for the appellants submitted that the trial Court held that plaintiff/ respondent No. 1 is daughter of Kondiba, she has failed to prove that she as coparcenary of Hindu family has a right in the joint family property, the trial Court further held that plaintiff is not entitled to share in her parental property in view of the provisions of Hindu Succession Act , the trial Court further held that defendants have proved that there was partition and suit properties were recorded in their names. So also, the trial Court held that the suit is bad for non-joinder of necessary parties i.e. legal heirs of deceased daughters of Kondiba Hambarde. It is submitted that accordingly the trial Court dismissed the suit on 18/09/2012.