(1.) The partition suit in which the execution proceedings (Darkhast 727-1900) now in question are taken was brought by the plaintiff a member of a Mirasi family interested to the extent of 8 annas in certain 3 villages named Kuvali, Bharni and Chafet. The other 8 annas in each village belonged to a Desai family. The plaintiff claimed a one-thirty-sixth share.
(2.) In November, 1888 a decree was passed for partition, the main provisions of which were (1) That the plaintiff should take into his possession his 1/36 share, division by metes and bounds being effected of the whole property in dispute except the Kulkarni Watan but the plaintiff before taking possession of his share was to pay with their consent to certain of his Mirasi co-sharers including the present appellants certain specified sums of money. (2) Two equal divisions between Desais and Mirasis were to be made in each village. (3) Then from the eight annas separated share of the Mirasis the shares of the sub-sharers should be separated, the respective fractions being specified in the decree. (4) After they had paid the proper Court fee in respect of their shares their shares were to be separate and as regards the lands which were with the sharers the same were as far as possible to be kept with them at the time of partition subject to certain provisions to secure equality.
(3.) The plaintiff first filed his application for execution of the decree in Darkhast 127/1893 and the main inquiry in connection with the partition was held under the Collector s direction in that Darkhast proceeding. Thereafter the defendant No. 8 filed Darkhast 404/1894 for his share and the Collector s surveyor who had been employed by the Collector on this Darkhast proceeding No. 127 stated in his report in Darkhast 404 that no thikan having in it the houses of any other party had been allotted to defendant 8 s share. That Darkhast was disposed of in or about 1898 according to the statement of the appellant but the date cannot be verified as many papers are missing and the only note of the Subordinate Judge which we have relating to any Darkhast other than that of the appellants, relates to Darkhast 118/1896 of defendant 2 and notes that the warrant for Kuvalegar having been executed and the Darkhastdar raising no objections this Darkhast is disposed of. The appellants state that they applied for separate possession of their share in 1900 but when the surveyor prepared a list of lands remaining over after the first partition as the share of the applicants the latter found the Khasgi lands in Kuvale remaining for their share far less than they should have got and that the plots below and adjoining their houses had been allotted to the share of other sharers. They then applied to the Collector to reopen the partition. The Collector declined to do this but proposed that the surveyor should at the applicants expense see if they could be compensated out of the Desai s lands. The applicants say they wanted time to pay these expenses and the Collector then reported to the Court that the applicants refused to take possession of their share.