YESHVANT RAMCHANDRA BHIDE Vs. GOVIND CHINTAMAN BHIDE

JUDGEMENT

(1.) This appeal is filed by the original defendants Nos. 1 to 3 in a suit by the plaintiffs to recover by partition possession of their one-fifth share in a house at Poona. The plaintiffs are the sons of one Chintaman who died in 1907, and defendants Nos. 1 to 3 are the stepbrothers of Chintaman. One Bhikaji was also a brother of Chintaman, and both Bhikaji and Chintaman were the sons by the first wife of Ramchandra while defendants Nos. 1 to 3 were the sons by his second wife. Ramchandra died in 1902 and Bhikaji is also dead. The plaintiffs case was that all the sons of Ramchandra were members of a joint Hindu family, and the suit house along with the other propertysituated at Sangli formed the joint family property ; that after Ramchandra's death, the plaintiffs father lived at Miraj and that he used to come off and on to Poona where Ramchandra lived with his sons. The family property at Sangli being in a Native State was not included by the plaintiffs in the suit here. The case of defendants Nos. 1 to 3 was that there was a separation of the members of the family in 1878 and that since then different members of the family were separately enjoying different properties; that Bhikaji and Chintaman got for their share a certain cash allowance and a house at Sangli, while Ramchandra and defendant No. 1 (defendants Nos. 2 and 3 being born later) were in possession of the suit house at Poona and certain shops and fields at Sangli. These defendants further contended that the suit was barred by resjudicata inasmuch as the plaintiffs uncle Bhikaji had filed a partition suit in 1913 in which the present defendants Nos. 1 to 3 were defendants Nos. 1 to 3 and the present plaintiffs were defendants Nos. 4 and 5, and that in that litigation it was held ultimately by the High Court that there was separation of the family members in 1878, and that the branch represented by defendants Nos. 1 to 3 was in exclusive possession of the suit house since then. The defendants contended that the present suit was, therefore, barred by resjudicata as the present plaintiffs were parties to that suit. On the merits it was contended that the plaintiffs were not in possession of the suit house at any time after 1878 and that they had lost their right to possession.

(2.) The lower Court has held that the present suit is not barred by res judicata, and that the present plaintiffs were not excluded from the enjoyment of the suit house inasmuch as the plaintiffs father and after his death the plaintiffs were in receipt of a part of the income of the suit house. It, therefore, held that the plaintiffs were entitled to get their share in the property, and passed a decree in their favour for partition.

(3.) The defendants have appealed against the decree, and two questions arise for decision in this appeal, firstly, whether the present suit is barred by res judicata by the decree in the former suit of 1913, and, secondly, whether the defendants are in exclusive and adverse possession of the suit property as against the plaintiffs.