TRIMBAK NIVRUTI YADAV Vs. LAXMIBAI GENU YADAV

JUDGEMENT

(1.) This second appeal is preferred by the heirs and legal representatives of the deceased defendant no. 1 to challenge the concurrent judgments and decrees granting a 1/3 rd share in the suit land jointly to the plaintiffs, and 1/3 rd each to the defendants. Respondent nos. 1 to 8 are original plaintiffs, respondent no. 9 is original defendant no. 2 and respondent no. 10 is one of the heirs of defendant no.1. The second appeal is admitted by order dated 3 rd July 2014 on the following substantial questions of law :

(2.) One Bapu Yadav was the ancestor. He was survived by three sons, Nivruti, Genu and Murlidhar. Genu's heirs have filed suit for partition and separate possession. Defendant no. 1 is the son of Nivruti, and defendant no. 2 is the son of Murlidhar. Nivruti expired sometime in 1917, Bapu expired sometime in 1928, Murlidhar expired sometime in 1948, and Genu expired sometime in 1972. The suit property was allotted in the name of Nivruti by executing a Kabulayatnama dtd. 24/6/1912 ("the lease") and then an order of regrant dated 27 th February 1917 ("the regrant order").

(3.) Defendant no. 1 - Trimbak is the son of Nivruti. According to defendant no. 1, Bapu was alive on the date of the lease and the regrant order in the exclusive name of Nivruti. According to defendant no.1, after the death of Nivruti, there was a partition between Trimbak, Genu and Murlidhar in respect of the joint family properties. Since the suit property was not part of the joint family properties, the same was not included in the partition that took place in the year 1933. According to defendant no.1, it was only in 1968 that Genu filed a suit for a simple injunction against Trimbak regarding the suit property. However, the suit was dismissed on 4/10/1971. After the death of Genu, his heirs and legal representatives, for the first time, prayed for partition and separate possession against Trimbak and Murlidhar's son Bhagwat by filing the present suit.