JUDGMENT - ZOTING D.S., J.:---This appeal is filed by the original defendant No. 1 against passing of the final decree for partition, in Special Civil Suit No. 66 of 1980, filed by the original plaintiffs, in the Court of Civil Judge, Senior Division, Jalgaon. By the said preliminary decree, share of the plaintiffs was determined to be half; whereas that of the defendant No. 1 to be remaining half. This preliminary decree is not challenged.

2. After the preliminary decree, final decree proceeding were started before the trial Court and for the purpose of effecting the partition as per the shares determined under the preliminary decree, Shri Pradhan, came to be appointed as Commissioner, in accordance with the provisions of Order 26, Rule 14 of the Civil Procedure Code and he submitted the report to the Court. The Civil Court, accepted the Commissioners report in toto and on the basis of the said report passed final decree. The final decree is challenged in this first appeal.

3. After passing of the final decree, there was one round of litigation between the parties in this Court which resulted the matter reaching the Apex Court. The Apex Court by order dated 25-2-2002, passed in Civil Appeal No. 1655 of 2002 arising out of S.L.P. (Civil) No. 191714 of 2001, remanded the matter to this Court with direction to dispose of the appeal preferably within six months from the date of order. Pursuant to the said order, the first appeal was placed for admission. Accordingly, appeal was admitted and was fixed for hearing on 23-4-2002. However, by that time, as the paper book was not ready, parties requested for some time for preparation of the paper book. It was noticed that though the suit for partition was filed in the year 1980, several objections came to be filed by the original defendants during pendency of the suit as well as during the final decree proceedings and, therefore, the disposal was delayed, and as such this Court, with a view to test the bona fide of the appellant, directed the appellant/original defendant No. 1 to deposit a sum of Rs. 23 lacs in the Court of Civil Judge, Senior Division, Jalgaon, within one month from the order dated 26-4-2002. The said order was also challenged before the Apex Court in Civil Appeal No. 7148 of 2002 and in view of the order dated 10-5-2002 passed by Supreme Court the order under challenge remained stayed with the modification that the petitioner/appellant shall furnish bank guarantee for sum of Rs. 23 Lacs. The appeal was disposed of on 1-11-2002 with the direction that subject to the above modification, the appellant shall continue to renew the bank guarantee till appeal is decided by this Court. Thereafter the appeal came up for hearing.

4. The facts which are not in dispute, may be briefly stated as under:

The appellant is the real brother of the respondent Nos. 1 and 2. The appellant was given in adoption to Manakchand. There was one firm namely, "M/s. Rajmal Nandlal and Company at Bhusawal". It was a registered partnership firm carrying on business of Cotton Ginning and Pressing in cotton. Its head office was at Bhusawal and branches were at different places. Partners of said firm were; Neelamchand Harakchand (respondent No. 1), Nirmalchand Harakchand (respondent No. 2), Lalchand Manakchand (appellant), Subhaschand Rajmal, Fakirchand Nandlal and Naginchand Nandlal. On 2-3-1977 the firm was dissolved and partnership was carried forward by Fakirchand and Naginchand. After dissolution of partnership firm, the suit properties were given to the share of the appellant, respondent Nos. 1 and 2 and one Subhash Rajmal Mehta jointly each having ¼th share in the said property. The appellant purchased ¼th share of Subhash Rajmal Mehta and as such he has ½ share in the suit property and the remaining ½ share goes to the share of both the respondents. The respondent No. 3 Lalchand Manakchand and Sons is the another firm of which the appellant and his two sons namely, Vinodkumar and Vijaykumar are t

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