This appeal is directed against the order and decree passed by the Court of Addl. Senior Civil Judge and JMFC, Athani, in O.S.No.176/2012 whereby the suit filed by the plaintiffs is dismissed for want of cause of action and in view of pendency of O.S.No.84/1997 on the file of the same Court.

2. For the sake of convenience, the parties are referred to as per their status before the trial court.

3. Plaintiffs preferred O.S.No.176/2012 against the defendants seeking for the relief of partition and separate possession. The subject matter of the suit is the lands bearing R.S.No.1536/1 measuring 10 acres 17 guntas and R.S.No.1536/2 measuring 10 acres 17 guntas situated at Athani, morefully described in the schedule to the suit property hereinafter referred to as the suit property. The plaint averments are that the plaintiffs and defendants are the joint family members and there was no partition by meets and bounds in respect of the suit schedule property between the parties. The genealogy shown in paragraph No.1 of the plaint describes the family tree of the parties to the suit. The case of the plaintiffs is that the suit property is the joint family property and the cause of action arose on 09.07.2012 when the plaintiffs and the elders approached the defendants with all the relevant records and documents demanding partition of the suit schedule properties of plaintiffs’ half share which came to be refused by the defendants.

4. On service of summons, defendants appeared and filed the written statement. Defendant Nos.2 and 3 contended that the suit filed by the plaintiffs is not maintainable either in law or on facts. It was admitted that the suit lands are Watan lands and one Appasaheb Sidaray Pawar Desai was the holder and after abolition of Watan, the said land was regranted to him and Sidaray Tatoba Ingale was cultivating the same as a tenant in his personal and individual capacity and his name was entered in the record of rights as protected tenant and father, brothers and sisters of Sidaray are no way concerned with the above said lands in any manner and they have no right, title and interest in the said property. It was further contended that R.S.No.1536/1 measuring 10 acres 17 guntas was taken on lease by the said Sidaray in his personal capacity as a tenant and his name is entered as protected tenant in the record of rights. After the death of said Sidaray in the year 1956, his tenancy rights came to be inherited by his widow Chandrabai and three daughters Akkatai, Bhagirathi and Sushila. Subsequent to the death of Appasaheb Pawar Desai, the name of his wife Smt.Satyasheeladevi was got entered in the record of rights. After her death, Sidraj Bhojaraj Pawar Desai got entered his name in the record of rights and got converted the suit lands into Raithawa. Thereafter, Vithal, the brother of Chandrabai purchased the said land in the name of Chandrabai through Registered Sale Deed dated 05.05.1973 for a consideration of Rs.5,000/and the name of Chandrabai was entered in the record of rights of the suit land. Bhimaray, husband of plaintiff No.1 and brother of Sidaray never cultivated the suit lands at any time. The said tenancy becoming individual tenancy of Bhimaray does not arise at all. It was contended that these defendants have filed suit for partition and separate possession of their share in the suit schedule properties in O.S.No.84/1997 on the file of the very same Court which is still pending. Hence, the plaintiffs have no cause of action to file the present suit.

5. Defendant No.1 has filed written statement in similar terms that the present suit is not maintainable interalia contending that the father of defendant Nos.2 and 3 made efforts to grab the suit lands by creating false agreement of sale and filed O.S.No.328/1989 on the file of the Prl. Civil Judge, Athani, against these defendants and Chandrabai which came to be dismissed and the same has been confirmed by this Court in R.S.A.No.576/2003 by the judgment