- (1.) Leave granted.
(2.) We have heard learned counsel for the appellant as well as learned counsel for Respondent 3 who is the only contesting party. In our view, this is a fit case in which this court should interfere in the interest of justice. A few relevant facts for highlighting the aforesaid conclusion of ours are required to be noted.
(3.) The appellant and Respondent l are brothers. It is not in dispute that there were agricultural lands in which the appellant and Respondent l and his another brother had l/3rd undivided share each. The undivided l/3rd shares of Respondent l as well as his brother were sold to one chandramohini Devi. Thereafter, the present appellant as well as his brother, respondent l along with the third brother were sued by the said purchaser in a Regular Civil Suit No. 12-A of 1954 in the court of Civil Judge, Senior division, Bhandara. The plaintiff wanted her 2/3rds share to be separated. The remaining 1/3rd share belonged to the present appellant, the third brother. There were other parties joined in the suit being Defendants 4 to 10 with whom we are not concerned as ultimately in the suit, the trial court passed the decree in the following terms: "1.It is hereby declared that the sale deed passed by Defendants l and 2 to Defendants 4 and 5 for the land Kh. No. 35 Village Sawari on 17/4/1958 and the other sale deed passed by them to Defendant 6 for kh. No. 27/2 of the same village on 11/5/1962, are not binding on the plaintiff as these lands were already sold by Defendants l and 2 to the plaintiff on 10/12/1951. 2. It is further declared that each of Defendants 1 to 3 has 1/3rd share in the suit property described in Schedules (1, (2 and (3 annexed with the plaint. 3. From the landed property described in Schedule (1, the land Kh. No. 218/3 admeasuring 1.34 acres situated at Village Kinhi and land Kh. No. 1/6 admeasuring 17 acres situated at Village Garada, are fallow lands and they are sold by Defendants l and 2 to the plaintiff. Therefore, they are ordered to be allotted to the 2/3rds share of Defendants 1 and 2 and their possession be given to the plaintiff, as Defendants 1 and 2 have sold them to the plaintiff. 4. At Village Sawari, there are 10 pieces of lands admeasuring 13.20 acres belonging to Defendants 1 to 3. Out of these lands, only 7 acres are sold by Defendants 1 and 3 to the plaintiff. These lands are therefore allotted to the share of Defendants l and 2 and as they are sold by them to the plaintiff, the plaintiff should be given possession of these 7 acres' land at the time of partition. The rest of the land admeasuring 6.20 acres 78 from Village Sawari, is allotted to the share of Defendant 3, though his 1/3rd share comes to 4.40 acres. The surplus 1.40 acres of land from sawari is given to him, which is cultivable, as no share is given to him in the land at Kinhi and Garada, which are fallow. This adjustment is ordered from the point of equity. 5. The house property from Schedule (2 and moveable property from Schedule (3 belong to Defendants 1 to 3 only. They do not claim partition of this property between themselves and the plaintiff has no interest in that property. Therefore, no order is passed about these two properties. 6. The partition of the landed property is to be effected by the collector of Bhandara or his gazetted subordinates, in the light of the above things and the plaintiff be put in possession of the 2/3rds share of defendants 1 and 2, as said above. 7. Defendants 1 and 2 shall pay the plaintiff's costs of this suit, incurred after remand of the suit from the High court. 8. All the defendants will bear their own. (sic) 9. The maps described as A, B and C, filed by the plaintiff along with the plaint, shall form part of the decree. 10. Final decree for partition of the land, as per Order XX Rule 18 (1 of the Civil Procedure Code, be framed. ";