R.M. Borde, J.

1. Heard Mr. P. Wagle, learned counsel appearing for the appellants and Mr. M. Aguiar, learned counsel appearing for the respondents. Admit. Heard finally with the consent of the learned counsel.

2. The learned counsel appearing for the respondents waives service.

3. The above appeal challenges the judgment and decree dated 7-6-2014 passed by the learned Civil Judge Senior Division, Ponda, in Special Civil Suit No. 14/2013/A whereby the suit filed by the appellants to partition the property came to be dismissed. The parties shall be referred to in the manner they so appeared in the cause title of the impugned judgment.

4. The plaintiffs filed the suit on the ground that the plaintiff Nos. 1, 3, 5, 7 and the defendant No. 1 are the children of late Vidhyadhar Madhav Upadhye and the plaintiff No. 8 is the widow of the said late Vidhyadhar Madhav Upadhye. The plaintiff Nos. 2, 4, 7 and the defendant No. 2 are the respective spouses of the said plaintiffs and the defendant. It is further the case of the plaintiffs that there exists a property known as 'Ghor Bhat' admeasuring an area of 1,24,800 square metres situated at Village Queula of Ponda Taluka surveyed under No. 57/1 of Village Queula belonging to the said Vidhyadhar Madhav Upadhye who expired on 8-12-2004. It is further the case of the plaintiffs that by deed of succession dated 4-4-2013 drawn before the Notary Ex-Officio at Ponda, the parties to the suit were declared to be the legal heirs/successors of the said late Vidhyadhar Madhav Upadhye, plaintiff No. 8 being moiety holder and half sharer to the estate of the said deceased. It is further their case that pursuant to the said deed of succession, the names of the parties were mutated in the survey records. It is also claimed by the plaintiffs that during the lifetime of the said Vidhyadhar Madhav Upadhye all the parties were allotted different portions of the suit property and they were enjoying separate portions as per the wishes of the said deceased. It is further their case that some portion was also kept for the widow i.e. Plaintiff No. 8 and a certain portion was kept for common enjoyment. Accordingly, it was the contention of the plaintiffs that they decided to partition the suit property by executing a deed of partition before the Sub Registrar of Ponda and accordingly the plan was drawn by the Civil Engineer. It is also the case of the plaintiffs that from the total area of the suit property is admeasuring 1,24,800 square meters, an area of 11,500 square meters was decided to be kept as common land and the remaining area of 1,13,000 square meters was to be partitioned amongst six persons in their respective shares namely 50% to the plaintiff No. 8 being the mother, admeasuring an area of 56,650 square meters, an area of 3530 square meters to the plaintiff Nos. 3 and 4; and an area of 13,280 square meters each to the plaintiff Nos. 1, 2 and 5, plaintiff Nos. 6 and 7 and the defendant Nos. 1 and 2. These areas were shown and identified in the plan attached to the plaint. It is further their case that after the plan was drawn in accordance with the respective wishes of the parties and when the plaintiff No. 6 approached the defendant No. 1 for contribution towards the stamp duty for executing the deed of partition, the said defendant refused to contribute and was unwilling to partition the property. As such, the plaintiffs filed the suit to partition the suit property as per the plan annexed to the plaint and for other reliefs. The defendants were served with the summons but failed to remain present. Thereafter, the plaintiff No. 6 has examined himself as PW 1 and produced the relevant documents. The engineer was also examined as PW 2.

5. The learned Judge dismissed the suit by the impugned judgment on the ground that no suit for partition would lie unless shares were determined in the inventory proceedings by relying upon the judgment of the learned Single Judge of this Court reported in, 1991 (