MADHORAO SAPRE Vs. MT. LAXMIBAI

JUDGEMENT

(1.) KINKHEDE , A.J.C. 1. This second appeal arises out of a suit brought by three plaintiffs for possession of 2/3rd share out of the malik makbuza lands of mouzas Kaurkheda 40'39 acres, Borikhurd 16'64 acres and Mazgaon Patol 30'45 acres, which were recorded in the papers of the settlement of 1892 as held in common by Raghunath and Narhari, sons of Krishnaji and one Ramchandra, son of Raghunath, all of Sapre family presumable as co-owners thereof. Neither party was at the stage of pleadings able to explain how these lards which admittedly were recorded in the name of Mt. Jamnabai, sister of Bha-gubai, the wife of Krishnaji, came into the possession of the persons recorded as malik makbuza proprietors thereof at the settlement of 1892. The plaintiffs' case was that Ramchandra Rao the husband of Laxmibai, defendant 1, and the grandfather of Vinayak, defendant 2, held and managed the lands on behalf of the other co-owners, the sons of Bhagubai who were the predecessors-in-interest of the present plaintiffs 1 to 3, and that on his death in 1912-13 his widow defendant 1 as well managed the cultivation on their behalf. It was also their case that the deceased Ramchandra Rao was let into possession by Bhagubai's third sister Mathu Bai's adopted son Gangadhar Vinayak Rao, who was entitled to the remaining 1/3rd share of the lands. The plaintiffs called upon the defendants to effect a partition which they declined to do in 1920. Hence after a futile attempt to get their names brought on the mutation registers in 1920, they filed this suit on 10th April 1922. The trial Court held that the plaintiffs were not entitled to succeed as they failed to make out their relationship, and their subsisting right of suit, and the lower appellate Court has confirmed the dismissal though on different grounds. The appeal to the lower appellate Court was preferred by plaintiffs Madhorao and Anandrao and the plaintiff 3 was made a co-respondent 3. This second appeal is filed by plaintiff Madhorao, but he has joined plaintiffs 2 and 3 as co-respondents. Thus we have before us all the parties interested in the litigation either as appellants or respondents.

(2.) A preliminary objection is raised on behalf of the principal respondents 1 and 2, Laxmibai and Vinayak that the appellant Madhorao cannot press this appeal as regards the entire 2/3rds share as the other co-plaintiffs 2 and 3, have not joined as appellants, and they must be deemed to have accepted the dismissal of their suit so far as their individual interest in the lands was concerned. The plaintiff-appellant's counsel urges that in view of Order 41, Rule 4 read with Rule 33, Civil P. C, the appeal is competent, and his Court can grant the relief in its entirety even on an appeal by one of the persons interested, and particularly because the non-appealing plaintiff's have been joined as co-respondents, and they are before this Court. I think the preliminary objection cannot be sustained in view of the provisions of the Civil Procedure Code relied on by the appellant. I therefore overrule the same and proceed to decide the appeal on its merits.

(3.) THE lower appellate Court's surmise that the lands were acquired prior to Gangadhar's adoption (vide para. 30) cannot be accepted as correct as I will presently show in the following lines.