( 1 ) THE appellant is the plaintiff is O. S. No. 84 of 1982 on the file of the District Munsif at adilabad. The respondents herein are the defendants in the said suit. The plaintiff filed the suit against the defendants for partition of the suit schedule properties into five shares and to put him in possession of one such share.

( 2 ) THE averments of the plaint are briefly as follows: one Ramlal s/o. Motiram was the original owner of the suit schedule lands, cattle shed and a house. Ramlal died in or about the year 1967 intestate leaving behind two sons i. e. , the 1st defendant and one tulasiram and widow Durgabai. The 1st defendant is the eldest son of Ramlal. The plaintiff and defendants 2 to 7 are his children. After the death of Ramalal the 1st defendant and his brother Tulsiram divided the joint family properties by way of family settlement in the year 1969-70. Since then the 1st defendant is enjoying the lands, cattle shed and house property jointly with the plaintiff and defendants 2 to 7. They are hindus and they are governed by the Hindu succession Act, 1956. The plaintiff is entitled to 1/5th share in the properties in the share of the 1st defendant and he demanded for partition on 26-9-1982 in the presence of panchas, but the 1st defendant denied the same. Hence the suit for partition.

( 3 ) THE defendants filed a written statement with the following averments in brief: ramaial was not the owner of the entire land situated in Sy. No. 11 and he was the owner to an extent of western half measuring Ac. 16. 33 guntas situated in singapur Village. The eastern half belonged to one Mohan Singh, paternal uncle of the 1st defendant s mother and the said Mohan singh gifted the said portion of land about 45 or 46 years back and executed a gift deed in favour of the 1st defendant. Since then the 1st defendant is in exclusive possession of the said land and the said portion of the land does not belong to the joint family of the 1st defendant and his brother Tulsiram. No partition took place in the year 1969-70 between the 1st defendant and his brother tulsiram. Durgabai is in possession of ac. 4. 00 of land situated in Sy. No. 131 of bhadi Village and the 1st defendant is in possession of Ac. 7. 00 of land. Therefore, tulsiram and Durgabai are necessary parties to the suit. In the year 1970 the plaintiff expressed that he does not want to live with the joint family and demanded that the property may be partitioned or he may be given the value of His share. Thereafter, the value of the share of the plaintiff was settled at Rs. 12,000/- and he received the said amount from the 1st defendant by relinquishing his interest in the joint family properties. Since then the plaintiff is living in adilabad and he acquired a house property worth Rs. 40,000/- at Adilabad. The plaintiff has no right or concern with the suit properties and he is not entitled for partition. Hence the suit is liable to be dismissed with costs.

( 4 ) THE plaintiff in order to prove his case examined P. Ws. 1 and 2 and marked exs. A-1 to A-6. The defendants examined d. Ws. 1 to 4, but did not mark any exhibits on their behalf.

( 5 ) THE trial Court after considering the oral and documentary evidence adduced by both parties dismissed the suit without costs holding that the eastern half of the land covered by Sy. No. 11 is not the exclusive property of the 1st defendant, that it is the joint family property of the parties, that the plaintiff relinquished his share in the joint family properties, that the 1st defendant s mother Durgabai, who was alive by the date of filing of the suit was a necessary party to the suit, that the suit is bad for non-joinder of Durgabai as defendant and that the court-fee paid is not sufficient.

( 6 ) THE plaintiff being aggrieved by the judgment and decree dated 14-12-1987 passed by the trial Court preferred A. S. No. 2 of 1989 on the file of the Court of the district Judge, Adilabad challenging its validity and le