SHANKAR Vs. MOTILAL

JUDGEMENT

(1.) THE present first appeal has been preferred by the defendants before this Court challenging the judgment and decree dated 16-1- 1996 passed by Additional District Judge, Dhar in Civil Suit No. 7-A/85 (Motilal and two others vs. Shankar s/o Bheema Kulmi and seven others).

(2.) IN the present case, a suit for partition, separate possession and mesne profits was filed by the plaintiffs Motilal, Kalu and Devkunwerbai. The genealogy of the parties of the suit is as under : - <IMG>JUDGEMENT_283_MPLJ3_2012image1.m.jpg</IMG>

(3.) IN the present case, the plaintiff/respondent No. 3 was the wife of appellant No. 1 Shankar and plaintiffs No. 1 and 2 were alleged to be sons of appellant Shankar borne from respondent No. 3, Devkunwerbai. Appellant No. 2 is the second wife of appellant-Shankar and appellants No. 3 to 7 are sons of appellant Shankar borne from appellant No. 2. Judgment delivered by the trial Court reveals that it was held by the trial Court that no divorce according to the custom of caste was proved between the appellant-Shankar and respondents No. 1 and 2 were not borne after divorce. The trial Court has also held that appellant No. 2 is legally married wife of appellant No. 1 and appellants No. 3 to 7 are their sons. On this basis, shares were declared in respect of appellants No. 2 to 7. It is pertinent to note that no appeal or cross objections have been filed by the respondents and therefore the findings have attained a finality. In the present appeal it is noteworthy to mention that the defendants in paragraphs-10 and 11 of the written statements have categorically pleaded that the suit lands were in ancestral land. The principle of Hindu law are not applicable to all the lands held by Pakka Tenant and Bhumiswami. Pakka Tenant as defined under section 54(vii) of the Madhya Bharat Land Revenue and Tenancy Act (Act 66 of 1950) reads as under : -