DIGAMBAR Vs. KASHIBAI

JUDGEMENT

(1.) The appellants (hereinafter referred to as "defendant Nos.1 to 3) have filed this appeal against dismissal of their Regular Civil Appeal No.283 of 2012 by the judgment and order dated 11.01.2016 passed by the District Judge-2, Latur confirming the judgment and decree dated 04.05.2012, passed by the Civil Judge, Junior Division, Ausa in Regular Civil Suit No.292 of 2000 filed by the respondents (hereinafter referred to as plaintiff Nos.1 to 3). During the pendency of this appeal, plaintiff No.1-Kashibai and defendant No.2- Lochanabai are dead and plaintiff Nos. 2 and 3 and defendant Nos. 1 and 3 are respectively their legal representatives.

(2.) The facts leading to the institution of present appeal in short are that plaintiff Nos.2 and 3 are respectively son and married daughter of plaintiff No.1. Plaintiffs filed suit for partition and separate possession of their share in the land Survey No. 115/A admeasuring 2 Acres 2 Gunthas situated at village Utka, Tal. Ausa, Survey No.116 admeasuring 7 Acres 14 Gunthas and Survey No.66 admeasuring 7 Acres 5 Gunthas, both situated at village Tattapur, Tal. Renapur, Dist. Latur (hereinafter referred to as "suit lands"), contending that plaintiff No.1 married with defendant No.1 about 30 to 32 years back and she is legally wedded wife of defendant No.1. Plaintiff Nos.2 and 3 are her children from defendant No.1. Defendant No.2 is keep of defendant No.1. Defendant No.3 is born from the illicit relation between them. According to the plaintiffs defendant Nos. 2 and 3 have no right in the suit lands. However, defendant No.1 illegally transferred suit lands Survey Nos. 116 and 66 in the names of defendant Nos.2 and 3. The plaintiffs contended that the suit lands are ancestral joint family properties. The land survey No.115/A situated at Utka is ancestral property and it was partitioned between defendant No.1 and his brothers and in the said partition defendant No.1 has got suit land Survey No.115/A as well as agricultural equipment, gold and cash of Rs.25000/-. Defendant No.1 being Karta of family of the plaintiffs, purchased suit lands Survey Nos.116 and 66 from the income of ancestral property and cash and sale proceeds of property received in the partition. Plaintiff No.1 and defendant No.1 were in joint possession of suit lands Survey Nos.116 and 66 from 1971 till 1995. As defendant No.1 illegally transferred these two suit lands in the name of defendant Nos.2 and 3 to deprive the plaintiffs' share in the said lands, plaintiffs demanded partition of the suit land by metes and bounds from defendant No.1, but he refused and therefore suit was filed on 28.09.2000.

(3.) Defendant No.1 resisted the suit by filing written statement. He admits that suit land Survey No. 115/A is his ancestral property. He contends that the suit land Survey No.116 and 66 at Tattapur are his self acquired properties. According to him he married with defendant No.2 about 40 years back and thereafter he married with plaintiff No.1. After marriage there was no issue to defendant Nos.1 and 2 for a long time and hence he performed second marriage with plaintiff No.1. After birth of plaintiff Nos.2 and 3, defendant No.2 gave birth to defendant No.3. He denied that defendant No.2 is his keep and defendant No.3 is born from his illicit relation with defendant No.2. It is contended that plaintiffs have no right to claim partition during his lifetime. Like plaintiff No.1, defendants have equal right in suit land Survey No.115/A, which is ancestral property. Further, he contends that Anusayabai Khatal, parental aunt of defendant No.2 is issue-less and she purchased suit land Survey Nos.116 and 66 in his name i.e. defendant No.1. These two lands are already given to defendant Nos.2 and 3 in the partition. According to him, the suit is bad for non-inclusion of house No.123 at Utka and house at Latur purchased in the name of plaintiff No.1. He, thus, prayed to dismiss the suit.