N. Kumar, J.

1. This appeal is preferred by the legal representatives of the 1st defendant challenging the judgment and decree passed by the Trial Court which has decreed the suit of the plaintiffs for partition and separate possession. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

2. The subject matter of the suit is, the agricultural lands and urban properties which are more particularly described in Schedule 'A' & 'B' at the foot of the plaint. Initially, only 'A' Schedule properties were included in the plaint. Subsequently, the properties, which were left out earlier, are included by way of 'B' Schedule properties.

3. Sri. Dattoba Ramachandra Jadhav was the propositus. He had two wives. His first wife is Gangubai and through her he had one son by name Ramachandra and a daughter by name Housabai. Sri. Ramachandra is the 1st defendant and Housabai is the 1st plaintiff in the suit. After the death of Gangubai, Shri Dattoba married Changunabai, the second wife, and through her he had one son by name Sambaji and five daughters by name Shakuntala, Nirmala, Kanchana, Shashikala and Jayashree. Shakuntala, Kanchana and Shashikala are arrayed as defendant Nos. 3 to 5, whereas Nirmala and Jayashree are arrayed as plaintiff Nos. 2 and 3. The 1st defendant died during the pendency of the proceedings. Therefore, his wife Ushatai and daughter and son by name Vidya and Vinayak were brought on record as legal heirs of 1st defendant as defendant Nos. 1(a), 1(b) and 1(c). Defendant Nos. 6 to 9 are the purchasers of some of the items of the properties and therefore, they were impleaded as parties.

4. The case of the plaintiff is Sri. Dattoba Ramachandra Jadhav had two brothers viz., Dhondiba and Narayan. The joint family consisting of Sri. Dattoba, Sri. Dhondiba and Narayan owned ancestral joint family properties. There was a partition between the said three brothers. After the partition, the three brothers were holding the properties fallen to their respective shares as owners thereof. Shri Dattoba Jadhav died on 20.12.1984 leaving behind him the plaintiffs and defendant Nos. 1 to 5 as his legal heirs. After the death of Shri Dattoba, defendant No. 2 and his mother started to contend that there was a partition between Shri Dattoba and his two sons viz., defendant No. 1-Ramachandra and defendant No. 2-Sambhaji. Defendant No. 2 and his mother were contending that during his lifetime Shri Dattoba had executed a Will bequeathing all the properties fallen to his share in their favour. Therefore, defendant No. 1 had filed a suit for partition and separate possession of his share in the properties in O.S. No. 136/1987. In the said suit, present plaintiffs were defendants. The present defendant No. 1, who had filed the suit in O.S. No. 187/1987 had contended in his plaint in the said suit that there was no partition between Shri Dattoba and the present defendant Nos. 1 and 2. The suit in O.S. No. 136/1987 was decreed on 10.09.1981. Aggrieved by the said judgment and decree dated 10.09.1981 in O.S. No. 136/1987, defendant Nos. 2 to 5 preferred a regular appeal before Hon'ble District Court, Belgaum, in R.A. No. 44/1999. The appeal came to be dismissed. Aggrieved by the same, defendant Nos. 2 to 5 preferred a regular second appeal in R.S.A. No. 881/2001 before this Court. By its judgment dated 11.11.2003, this Court had ruled that there was no partition between Shri Dattoba and present defendant Nos. 1 and 2 in the year 1981. It further held as all the properties standing in the name of Dattoba and present defendant Nos. 1 and 2 are liable for partition. Therefore, the plaintiffs requested the defendants to effect partition in the family properties and to give to the plaintiffs their due share in the properties during the 1st week of December, 2004. Their request was declined. Theref