VITHALRAO ALIAS WAMANRAO Vs. RAMESH

JUDGEMENT

(1.) INVOKING the jurisdiction of this Court under Section 100 of C.P.C., 1976, this Second Appeal has been filed by the appellants/defendants challenging the judgment and decree passed by the learned District Judge, Wardha on 07-02-1987 in Civil Appeal No.24/1984, setting aside the judgment and decree passed by the trial Court on 28-10-1983 in Regular Civil Suit No.227 of 1980. The Court of Appeal granted preliminary decree for partition in favour of the respondent / plaintiff by declaring that he is entitled to receive 1/3rd share in the joint family property owned by the defendant no.1 and further directed the latter to submit the accounts of the property from 1980-81 till the plaintiff is put in possession of his share, with further directions that the partition of the land shall be effected by the collector and the partition of the house shall be effected by appointing a Commissioner.

(2.) BRIEF facts are as under: The plaintiff has instituted a suit for recovery of possession and partition of his 1/3rd share in the properties described in Schedule - A, B and C appended to the plaint. It is the case of the plaintiff that all the properties described in the Schedules are joint family properties owned by the defendant no.1 (died during the pendency of this this appeal and his L.Rs. are brought on record). It is contended that the defendant no.1 is the father and the defendant no.2 is his step brother, and the plaintiff and the defendants were members of the Hindu Coparcnery, governed by Mithakshar School of Hindu Law. It is contended that the defendant being the father, did not care for the maintenance of the plaintiff and, therefore, the latter has brought the suit for possession as well as separate 1/3rd share in the suit properties.

(3.) THE Appellate Court reversed the findings of the trial Court and passed a decree for 1/3rd share in the suit property for partition and separate possession in favour of the plaintiff. THE defendant no.1 died during the pendency of the appeal, and his legal heirs have been brought on record. That is how the defendants are before this Court in this Second Appeal.