HASAN BAPU PATIL (SINCE DECEASED, REPRESENTED THROUGH LRS ) & ORS Vs. GAFUR BAPU PATEL (SINCE DECEASED, REPRESENTED THROUGH LRS ) & ORS

JUDGEMENT

(1.) This second appeal, arising out of separation of shares of the Muslim coheirs, has been admitted on substantial questions of law, relating to (a) grounds of maintainability, (b) partition of regranted property, and (c) renunciation of rights by the plaintiff. After hearing the arguments and after giving intimation , the parties are heard on additional substantial question of law relating to res judicata in view of judgment and decree in Regular Civil Suit No. 335/1952.

(2.) The facts relevant for deciding this appeal lie in narrow compas are as under:

(3.) Mr. P. K. Dhakephalkar, learned senior counsel for the Appellant argued that in Regular Civil Suit No. 335 of 1952 the decree for separation of shares was passed. The copies of judgment and decree were filed in the first appeal. The first appellate court erred in neglecting those documents and held that the decree was only for joint possession. There was admission in the pleadings of the plaintiff that he had received possession of the land and it was entrusted with Chamubi, his stepmother. It was not proper on the part of the first appellate court to hold that pleadings of the plaintiff were defective. The decree specifically directed separation of the shares and the only course open for plaintiff was to apply for final decree, which the plaintiff has not done. The new suit was not tenable.