( 1 ) THIS second appeal is preferred by the heirs of the original plaintiff of Regular Civil Suit No. 283 of 1967 filed in the Court of the learned Third Joint Civil Judge Junior Division Porbandar seeking a preliminary decree for partition and separate possession of the suit properties. The plaintiff claimed a partition decree pertaining to the two suits immovable properties namely a house consisting of three floors ground floor first floor and second floor situated near Madhi in Porbandar while the second immovable property was situated in Navapada to the east of the fish market.

( 2 ) OUT of the aforesaid two properties the learned Trial Judge on the admission of the defendants to the effect that Navapada property was the joint family property of the parties granted a preliminary decree for partition but dismissed the suit so for as Madhi immovable property was concerned on the ground that the plaintiff had failed to establish that it was a joint family property. This partial rejection of the prayer of the plaintiff by the trial court prompted the plaintiff to prefer a regular civil appeal No. 16/72 before the learned Assistant Judge Porbandar. The original plaintiff expired during the pendency of the appeal before the District Court and his heirs were brought on record of the said appeal. The learned Assistant Judge was pleased to dismiss the said appeal. The appellants who are the heirs of the original plaintiff have preferred this second appeal and have prayed for grant of their prayer for partition and separate possession of the said immovable property namely the Madhi house. 3 A few facts leading to this proceeding between the near relatives may now be stated. 4 Relevant pedigree showing the relationship of parties is as under: Kala Khirnji @@@ kala Khimji | - -- shamji Jadav Pama = Bai Ratna _ _ -- D. 13. Devji Babu Gokal Ramji P. D. 7 D1 1 x Hira = Bai Lilu D3. - d2. D4 D5 D6 D8 D9 D10 D11 D12. @@@

( 3 ) THE parties are Kharavas or fisher men. Their original ancestor was one Kala Khimji. He had three sons Shamji Jadav and Pama. Pamas widow is Bai Ratna who was the original defendant No. 13. Shamji had two sons Devji and Babu. Devji was the original plaintiff before the trial court while Babu was the original defendant No. 7. Jadav had three sons one Gokul who was original defendant No. 1 second son was Ramji who died issue less and the third son was Hira who died leaving his widow Bai Lilu defendant No. 3 and his sons and daughters defendants Nos. 2 4 to 6 and 8 to 12 respectively. The contention of the plaintiff is that the Madhi house belonged to the joint family of Kala Khimji. After his death his three sons Shamji Jadav and Pama had become the coowners of this house and the excoowners and the children of Jadav and Shamji had actually occupied the house in question.

( 4 ) IT may be stated here that the original plaintiff was residing on the top floor of this disputed house on the one hand and the ground floor and first floor were occupied by the other contesting defendants on the other hand. The plaintiffs further case was that even though he was occupying the top floor as one of the coowners he wanted his share to be separated and consequently he had filed the aforesaid suit for partition and separate possession of his share in the said joint family house.

( 5 ) IT may be stated that originally daughters of Hira Jadav Kala and widow of Pama were not joined as parties to the suit but they were brought on record by an application Exh. 67 dated 1st July 1971 whereby the original defendants No. 8 to 13 had joined as codefendants.

( 6 ) IT will thus be seen that the plaintiff had sought partition of the suit disputed house because it was in his joint possession along with his cousin brothers who are the Sons of uncle Jadav and the heirs of other cousin brother Hira Jadav.

( 7 ) THE suit was resisted by the contesting defendants and their contention was that the su