KRISHNA SAVALA DALVI Vs. SAMPAT KRISHNA KADAM

JUDGEMENT

(1.) Heard learned Counsel for the Appellants.

(2.) This second appeal arises out of a decree of declaration of 1/3rd share of Respondent No.1 (original plaintiff) in the suit property and an order for separate possession of that share. The appeal was admitted on substantial questions of law set out in the grounds urged in the second appeal. The main grounds urged in support of the appeal are contained in the questions of law formulated in grounds (a) and (e). Ground (a) concerns maintainability of the suit without seeking a declaration or relief concerning the decree of specific performance passed in favour of defendant no.1 in Regular Civil Suit No.219 of 1972. Ground (e) concerns permissibility of a partial partition. It is submitted that it has come on record that the plaintiff possesses in his own names several joint family properties and that without including these properties in the pool of properties for effecting a partition, no partition decree was permissible.

(3.) The suit property consists of two parcels of land: Survey No.26/2 admeasuring 2 acres and 13 gunthas, and Survey No.26/3 admeasuring 2 acres 10 gunthas. Both properties are at Parali in Satara district. It was the case of Respondent No.1 (original plaintiff) that the properties were owned originally by one Natha Kadam, who was survived by his three sons: Krishna, Ganpat and Ramchandra. Krishna died in the year 1961, leaving him surviving by the plaintiff as his sole legal heir. Ganpat died in the year 1970, survived by Respondent Nos. 3 and 4 herein (original defendant nos. 3 and 4). Ramchandra was alive, when the present suit was filed. He was arraigned as defendant no.2 to that suit. (Ramchandra is Respondent No.2 to the present second appeal.) The Appellant herein, as noted above, was arraigned as defendant no.1 to the present suit. It was the case of the plaintiff that he had 1/3rd share in the suit property through his deceased father Krishna.