T. Nalawade, J.

The appeal is filed against the judgment and decree of Regular Civil Appeal No. 477/1985 which was pending in the Court of the learned Additional District Judge Shrirampur, District Ahmednagar. First Appeal was filed by the original plaintiff against the judgment and decree of Regular Civil Suit No. 360/1980 which was pending in the Court of the Civil Judge, Junior Division, Newasa, District Ahmednagar. The appeal is allowed by the First Appellate Court and the judgment and decree of dismissal of partition suit is set aside and the relief of partition is given in favour of the plaintiff. Both the sides are heard.

2. The appeal is admitted by this Court (other Hon'ble Judge) on following substantial question of law:-

"Whether the exemption from bringing on record the legal representatives of deceased respondent No. 2 - Mukinda cannot be claimed by the respondent No. 1 - Babu without obtaining leave under Rule 4(iv) of Order 22 of C.P.C. in view of "Zahirul Islam v. Mohd. Usman and others" (2003) 1 Supreme Court Cases 476 and whether the impugned Judgment is vitiated due to such technical difficulty ?"

3. The learned counsel for the appellants was allowed to argue on other points also which are as under :-

(ii) Whether the Civil Court is bound to draw inference on the basis of certificate of purchase issued under section 32-M of the Bombay Tenancy and Agricultural Lands Act, 1948 that the certificate holder is the absolute owner of the property and it is his self acquired property or whether the members of the joint Hindu family can be allowed to prove in Civil Court that it was joint family property or whether such dispute needs to be referred to the Tenancy Court ?

(iii) Whether due to death of a member of the joint Hindu family who is entitled to have his share on partition the entire action of partition abates if his legal representatives are not brought on the record even when he had admitted the suit claim ?

4. Plaintiff-Babu Mahadu, defendant No. 1 Rajaram Mahadu and defendant No. 2 Mukinda are real brothers inter se. Defendant Nos. 3 to 6 are heirs of one deceased brother of plaintiff namely Damodhar and defendant Nos. 7 to 15 are heirs of another deceased brother of the plaintiff namely Chandrabhan. Father of plaintiff, Mahadu died in the year 1935. These facts are not disputed.

5. The suit properties are described in three groups by plaintiff in the plaint. In plaint para 1-A some agricultural lands are mentioned and it is the case of the plaintiff that these lands are left behind by Mahadu and so they are ancestral and joint Hindu family properties of plaintiff and defendants. Similar contention is made in respect of house properties mentioned in plaint para 1-C.

6. It is contended that the agricultural lands mentioned in plaint para 1-B like Gat Nos. 475, 202, 496 situated at village Chanda were with Mahadu as tenant and under the Bombay Tenancy Act certificate of purchase is granted. It is contended that after the death of Mahadu, all the sons of Mahadu cultivated the lands as the property of joint Hindu family and on the relevant date they all were cultivating the land and so certificate issued under section 32-M of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, "the Bombay Tenancy Act") in the name of defendant No. 1 was issued for all the members of the joint family and it was issued in the name of defendant No. 1 as Karta of this joint Hindu family. It is also contended that the purchase price of these three lands was paid out of the income of joint Hindu family property. All the properties are situated in village Chanda.

7. It is the case of the plaintiff that the sons of Mahadu started living separate from each other in the year 1972 in different houses of the joint Hindu family but they did not partition the properties. It is his case that the sons of Mahadu started cultivating different portions of the lands separately but the lands described in para 1-B were cultivating join