This matter was on board under the caption of final hearing. When the matter was could out for final hearing at 3.15 p.m. on 22nd April 2008, nobody appeared for the respondent to represent them. Mr. Khandepakar, the learned counsel appearing matter at the appellant, was present. He argued the matter at length till 5.00p.m. on 22nd April, 2008.

On 22nd April, 2008 itself, Mr. Khandepakar for the appellant was requested to communicate to the advocate for the respondent the for that the matter is fixed for final hearing and remained part heart, to be heart on 23rd April, 2008, Mr. Khandeparkar for the appellant informed me that accordingly he intimated the said fact to the respondents' advocate through his colleague advocate Mr. Kalake and Mr. Kalake informed him that a message was given to the advocate for the respondents that the matter is fixed for final hearing on 23rd April, 2008. But nobody appeared for the respondents on 23rd April 2008.

2. This is a second appeal filed by the appellant, who is the original plaintiff, against the judgment and order passed by the Addl Sessions Judge, Gadhingalaj allowing the appeal filed by the respondents/defendants and setting aside the judgment and decree of the trial Court,

FACTUAL MATRIX :.

3. The case of the plaintiff, in brief, is as under:-

The appellant - original plaintiff had filed a suit for partition in respect of 13 agricultural fields and 7 houses situated at village Uttur, Taluka Ajara against the respondents - original defendants. (For the sake of convenience, I am referring the parties in the appeal as the plaintiff and the defendants.). The plaintiffs father Appa was the real brother of Defendant No.1 Laxman. The suit agricultural fields Gat Nos.313, 323, 324,33,373,374,402,416,419,433,435,436 and 415 and the suit houses bearing Grampanchayat Nos.227, 227/1, 228, 229, 230, 662, and 663 situated at village Uttur are the joint family properties of the plaintiff and the defendants. Since defendant No.1 - Laxman was the Karta of joint family, all the suit properties, mentioned herein above, were entered in his name.

4. In the year 1960, the plaintiff and Defendant No.1 had given a wardi for deleting the name of Defendant No.1 as a Karta of joint family from the record of the suit properties and for entering it in their names to the extent of 8 anna share each. Accordingly on the basis of the said wardi, mutation entry No.3104 has been effected and the names of the plaintiff and defendant No.1 have been entered into the revenue record to the extent of 8 anna share each. Since then they are in possession of the suit properties.

5. It was the case of the plaintiff that a dispute arose between them on account of the trees and, therefore, it was difficult for them to cultivate the suit fields jointly. It is averred by

the plaintiff that he is having half share in the suit properties. It is further pleaded by the plaintiff that the suit house bearing Grampanchayat No. 227/1 is also the joint family property of the plaintiff and the defendants though it is in the name of Defendant No.1. As some of the suit properties are in the name of Defendant Nos.2 to 4, they were made parties to the present suit, The plaintiff has, therefore, demanded partition of the suit properties from the defendants in the month of December, 1984, but they have refused for the same. Hence he has filed the present suit bearing Regular Civil Suit No.5/1985 before the Civil Judge, Junior Division Ajara, at Ajara.

6. The defendants filed their written statement and resisted the claim of the plaintiff. They contended that in the year 1960 the oral partition took place between them through the panch as. After the aforesaid partition, the plaintiff and the defendants have given wardi for recording their names in the record of the suit properties as per their shares of the oral partition of the year 1960. Accordingly their names were entered into in the record of the suit properties to the extent of their respe