RAMCHANDRA NATHU GHADAGE Vs. RAJARAM NATHU GHADAGE

JUDGEMENT

(1.) This appeal arises from the decree of partition and possession passed by the learned 5th Joint Civil Judge at Satara on 17/1/1983 in Regular Civil Suit No. 241 of 1981 and confirmed by the Lower Appellate Court as per its Judgment and Order dated 21/4/1988 in Civil Appeal No. 63 of 1983. The substantial questions of law framed while admitting this second appeal are as under:

(2.) The suit properties are agricultural lands and residential houses and they were mentioned in schedule "A" and "B" to the plaint. Nathu Pandu Ghadage was married to Sundarabai and from the said wed-lock, plaintiff No. 1 -Rajaram, son and plaintiff nos.2 and 3 daughters were born. Sudarabai died sometimes in the year 1940 and, therefore, Nathu married to Laxmibai -defendant No. 8. From this second marriage Nathu begot seven children i.e. defendant nos.1 to 5 and 7, sons and defendant No. 6, the daughter. The agricultural land shown as suit property is in excess of 28 acres. Nathu died in the year 1980 and the plaintiff approached the trial court stating that though there was a decree of partition passed in Regular Civil Suit No. 227 of 1959, he was not given his 1/10th share in the suit property as per the said decree and on the contrary, he was put in possession of 1 Acre and 13 Gunthas of land and 3 Khans in the house for his residence by his father and he had respected the same without raising any further dispute but without giving up his claim. The plaintiffs further stated that on the demise of Nathu the defendants and more particularly defendant nos.1 to 5 and 7 refused to give the plaintiffs' share by partitioning the suit properties. Regular Civil Suit No. 241 of 1981 was filed on or about 29/4/1981 and as the defendants did not contest the suit inspite of causing their appearance, the suit was decree ex parte on 17/1/1983 and the trial court held that the plaintiffs were entitled to get partition and possession of 1/11th share each of the suit property described at at Exh.3. This decree passed by the trial court came to be challenged by the defendant nos.1 to 5 and 7 by filing Civil Appeal No. 63 of 1983 and the same came to be dismissed with costs.

(3.) So far as the first substantial question of law is concerned, it needs to be noted that the suit was transferred from the Joint Civil Judge, J.D. to 5th Joint Civil Judge, J.D. and at the same station. The defendants had appeared on receipt of summons in the suit on 10/9/1981 through an advocate. When the transfer of the proceeding from one court to another court at the same station is done, no notice is required to be given to the parties so long as they have caused their appearance through advocate or in person. Record also indicates that some applications were filed on behalf of the defendants, but no Written Statement was filed inspite of more than 10 opportunities having been given. The learned Trial Judge, therefore, passed an order of no W.S. on 8/7/1982 i.e. after about 10 months of the defendants causing their appearance. The roznama further indicates that the suit was listed before the trial court thereafter on 27/8/82, 16/9/82, 16/10/82, 8/11/82 and none appeared on behalf of the defendants on these dates. On 5/1/1983 defendants as well as their advocate remained absent and the depositions of plaintiff No. 1 were recorded on that day. The suit was adjourned to 11/1/1983, but on 10/1/1983 the suit was taken on board on an application made by the plaintiffs' advocate. On 11/1/1983 again the parties were represented by advocates but the defendants did not take any steps either to cross-examine plaintiff No. 1 or to file any application. Finally on 17/1/983 the trial court pronounced its judgment.