TULSABAI GYANBA SHINDE Vs. SHRIRAM BAPURAO KURHE

JUDGEMENT

(1.) Present appeal has been filed by the original plaintiff No. 2 challenging the Judgment and decree in R. C. A. No. 19 of 2012 by District Judge-1, Gangakhed dated 20th November 2014, whereby the appeal filed by the present respondents came to be allowed. In the said appeal, the present respondents had challenged the Judgment and decree passed in R. C. S. No. 60 of 2009 (old R. C. S. No. 9 of 2005) by learned Civil Judge Junior Division, Palam, Dist. Parbhani dated 21.3.2012.

(2.) The present appellant as well as one more plaintiff had filed the said suit for partition and separate possession. Defendants No. 1 to 4 were the cousin brothers of plaintiff No. 1 and they are the real brothers inter se. Defendants No. 5 and 6 were also the cousin brothers of plaintiff No. 1 and they were the real brothers inter se. Defendants No. 7 and 8 are the sons of defendant No. 4. Plaintiffs had come with a case that agricultural lands bearing Survey No. 36/1 admeasuring 1 H 11 R, Survey No. 36/3 admeasuring 1 H 61 R and Survey No. 36/4 admeasuring 2 H 17 R situated in village Digras, Tq. Palam are the ancestral properties of plaintiffs and defendants. Naroji Bapurao Kurhe was the father of plaintiff No. 1 and husband of plaintiff No. 2. He was the brother of defendants No. 1 to 4. He expired in 1978. He was also having one son by name Maruti. Maruti had expired in 1984. It is stated that after Naroji expired, plaintiffs were driven out of the house and therefore, both the plaintiffs started residing with the brother of plaintiff No. 2 at Karegaon, Tq. Parbhani. It is also stated that plaintiff No. 2 has performed second marriage. According to the plaintiffs, they have 1/5 th share in the suit properties. Defendants No. 1 to 4 have created third party interest in the suit properties. However, that will not affect the rights of the plaintiffs. It is also stated that there were 3 sisters of defendants No. 1 to 4. The marriage expenses of those sisters has been borne by Naroji and therefore, they have not been added as a party to the suit. Plaintiffs had demanded their share to be separated. However, defendants avoided on one or the other pretext and therefore, suit for partition was filed.

(3.) All the defendants have filed collective written statement and denied the claim of the plaintiffs. It was stated that plaintiff No. 1 is not related to them. They have also raised question in respect of plaintiff No. 2 regarding her alleged second marriage. It also appears that the contention was raised by them that Naroji had performed the marriage about 42 years ago with Tulsabai. But, after death of Naroji, Tulsabai sold the house and left the village. Bapurao, who was the father of Naroji and defendants No. 1 to 4, had effected partition amongst the 4 sons i.e. defendants No. 1 to 4 and in view of the said partition, each one of them possess their respective share in the suit properties. It is also contended that the land survey No. 36/3 is not the ancestral property, but, it has been purchased by them after the partition. It is also stated that one Uddhav, who is the son of defendant No. 2 has not been made as a party to the suit. He had purchased 39R land out of Survey No. 36/4. They have contended that since the partition is already effected and accordingly, mutation entries have been carried out, the suit is not maintainable.