KISANRAO UCHITRAO SARNAIK Vs. SADASHIVRAO RAOBARAO DESHMUKH

JUDGEMENT

(1.) The appellants before this Court are legal heirs of original defendant no.1 in Regular Civil Suit No. 156/1978. Said suit was filed by Nagorao and Tryambakrao, both brothers claiming inheritance to the property left behind by mother . Parvatibai, of defendant no.1. One Ziprabai got herself impleaded in that suit by moving Application under Order I Rule 10 of Civil Procedure Code and claimed that the suit property was gifted to her by Parvatibai during her life time & accordingly filed a counter claim also. The Joint Civil Judge, Junior Division, Washim by judgment dated 2nd September 1988 dismissed the suit as also the counter claim. This judgment and decree of Trial Court was challenged by the original plaintiffs by filing Regular Civil Appeal No.222 of 1989 and by Ziprabai by filing Regular Civil Appeal No.228 of 1989. By common judgment delivered on 20th June, 1991 the Additional District and Sessions Judge, Washim dismissed the appeal filed by the plaintiff and allowed the appeal filed by Ziprabai, thus decreeing her counter claim. Thereafter only defendant no.1 . Kisanrao has filed present Second Appeal. The original plaintiffs have not preferred any appeal. With the result, the only question which needs to be considered within the limitation of Section 100 of Code of Civil Procedure is in relation to the judgment and decree of Appellate Court allowing counter claim filed by Ziprabai is proper or not.

(2.) During the pendency of the proceeding before the lower Appellate Court Ziprabai expired and her legal heirs are respondents in this second appeal. The agricultural field property which forms subject matter of the gift are popularly known as 'Male' and 'Tivsali'. The description of the field property in plaint paragraph no.3 does not use these names.

(3.) On 25.11.1991 this court has admitted the present Second Appeal by mentioning that the question nos. 1,5,6 and 8 as framed in the memo of appeal are grounds for its admission. Apart from that it is also specified that tenability of counter claim between co-defendant was the other issue on which the appeal has been admitted. It is to be noted that in view of the subsequent amendment to the Code of Civil Procedure, the arguments before me have been restricted only to ground nos. 1,5, 6 and 8 in appeal memo. Those grounds are reproduced below for ready reference.