BALWANT RAO Vs. KERBA

JUDGEMENT

(1.) THIS is a second appeal in a suit for partition filed by the Plaintiff against the other members of the Joint family claiming that he is entitled to one -third snare in the joint family property. The persons who are made parties to this suit are: the uncle of the Plaintiff and (2) nephew by a predeceased uncle. The Defendants resisted the suit on the ground that the Plaintiff was not entitled to any snare in the suit property as he was not a member of the joint family. The trial court recorded the evidence led by both the parties and passed a preliminary decree in favour of the plaintiff to the extent of one -third share in the joint family property. When the case came up in appeal, the appellate court remanded the case to the trial court to enable the Defendants to examine some witnesses who were not allowed to be examined in the first instance. When the case came to the trial court after remand, the (Defendants did not produce those witnesses whom they were directed to examine by the lower appellate court in its order of remand but desired to produce other witnesses whom the court declined to examine. Eventually, the trial court passed a preliminary decree in favour of the Plaintiff. This decree was confirmed by the lower appellate court. This appeal is against the judgment of the lower appellate court confirming the decree of the trial court.

(2.) THE points urged by the learned advocate for the Appellant are:

(3.) IN this connection we would refer to R. 3 of the Rules under the Law of Partition of 1352 P. which is to the following effect: