HIRALAL Vs. BHOJA

JUDGEMENT

(1.) THE appellants/defendants have filed this second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 19-8-1982 passed by Additional Judge to the Court of District Judge, Mandleshwar in Civil Regular Appeal No. 9-A/82 whereby decreed the suit of the respondents/plaintiffs by setting aside the judgment and decree passed by Civil Judge, Class-II, Sendhwa which was passed on 23-2-1982 and whereby suit of the respondents/plaintiffs was dismissed for declaration of title and for partition and possession including mesne profits.

(2.) THIS appeal was admitted for final hearing on the following substantial questions of law :-

(3.) THE brief facts of the case are that the plaintiffs, who are the son, one widow, and daughters of deceased Chinda, filed a suit against 3 defendants. Defendant No. 1 Ghudkibai who was also one of the widows of deceased Chinda as Chinda had two widows. Ghudkibai died during the pendency of the suit. Therefore, her name was deleted from the array of the title para of the plaint. The appellants/defendants are the purchasers of 4. 46 acres of land out of Khasra Nos. 161/2 and 474/27/2 from Ghudkibai. The respondents/plaintiffs suit in nut-shell was that the deceased Chinda s/o Gangaji was having some ancestral property bearing Khasra No. 161 area 17. 38 acres having land revenue of Rs. 59. 77 and Khasra No. 474 area 0. 44 acre having land revenue of Rs. 0. 98 ps. The deceased Chinda died in the year 1969. After the death of deceased Chinda, at the instance Ghudkibai there was some partition between some of the heirs of Chinda before the Tehsil Court and a declaration was also sought in the suit that the aforesaid partition is not binding on the respondents/plaintiffs. The Trial Court dismissed the suit of the plaintiffs holding therein that the aforesaid lands were not ancestral properties. Thereafter the respondents/plaintiffs preferred an appeal which was allowed by the First Appellate Court and the First Appellate Court decreed the suit of the plaintiffs holding therein that the deceased Chinda was the Bhumiswami of the aforesaid land and the respondents/plaintiffs being the heirs of deceased Chinda are entitled for their share in the property and also for partition as they are having 1/8th share each in the property. Accordingly it was directed that leaving behind the share 1. 11 acres the rest of the property be divided amongst the respondents/plaintiffs, against which the appellants/defendants have filed this second appeal which was admitted on the aforesaid substantial questions of law.