MAROTI PARBHATRAO Vs. MUKTABAI

JUDGEMENT

(1.) Present appeal has been filed by original defendants no.01 to 05, challenging the concurrent judgment and decree passed in Regular Civil Appeal No. 171 of 1993 [Old Regular Civil Appeal No. 115 of 1990], by Additional District Judge, Biloli, dated 28-02-1996 and in Regular Civil Suit No. 406 of 1986 by Civil Judge (Junior Division), Degloor, District Nanded, dated 30-03-1990, whereby the learned trial Court had decreed the suit for partition and separate possession filed by present respondent no.01 - original plaintiff and the said judgment and decree was confirmed by the first appellate Court. (Parties are referred as per their nomenclature before trial Court.)

(2.) It is not in dispute, that the original plaintiff and her minor son had filed R.C.S. No.47 of 1974 for partition and separate possession against defendant no.01 Maroti. The said suit came to be compromised and the share of son of the plaintiff to the extent of 1/3rd was carved out and he was declared as owner.

(3.) The original plaintiff had come with a case, that she is the legally wedded wife of defendant no.01. Her marriage with defendant no.01 was solemnized in 1954 and she has three children from defendant no.01. Suit lands are the ancestral lands of plaintiff and defendant no.01. In the said suit i.e. R.C.S. No.47 of 1974, it was agreed that her 1/3rd share in the suit property would be kept joint with defendant no.01 and defendant no.01 will not alienate the suit land without her consent. It is stated that defendant no.01 got married to defendant no.05 in 1970. The said marriage is illegal and void. Defendants no.01 and 05 have defendants no.02 to 04 children who are illegitimate and they have no right in the ancestral property of plaintiff and defendant no.01. It is stated that defendant no.01 got names of defendants no.02 to 04 recorded in the revenue record of the suit land without the consent of plaintiff. Defendants no.02 and 03 have not got any ownership or possessory right over the suit land to the extent of the area shown in their names. It is stated that defendant no.09 managed to file R.C.S. No.55 of 1980 through defendant no.02 but it was dismissed. They had also preferred appeal but it was also dismissed on 28-02-1986. But then defendant no.01 without the consent of the plaintiff as well as without any legal necessity started alienating the suit properties in favour of defendants no.06 to 09. Those transactions are not binding on the plaintiff. It is also stated that defendant no.09 has further transferred the suit land in favour of defendant no.10. It is also stated that the plaintiff does not want to keep her 1/3rd share joint with defendant no.01 and, therefore, she had prayed for partition and separate possession of the same with mesne profit at the rate of Rs. 500.00 per annum.