1. - Case called for hearing. No one is present on behalf of the respondents.

2. Heard learned counsel for the appellant.

3. This regular first appeal under Section 96 of the Code of Civil Procedure , on behalf of the defendant no.1, was filed being aggrieved with the judgment and decree dated 15.07.1991 passed by the Additional District & Sessions Judge No.2, Ajmer, in Civil Suit No.103/83, whereby suit of plaintiff-respondent No.2 Yogesh Chand Pathak for partition of the disputed property was dismissed by the trial court.

4. Briefly stated the facts of the case are that plaintiff-respondent No.2 Yogesh Chand Pathak filed a suit for partition in respect of disputed property i.e. plot of land bearing No.25, with adjacent land as described in Para 2 of the plaint, in the court of District Judge, Ajmer, wherein it was pleaded that the disputed property was purchased by Smt. Bhagwati Devi, the mother of plaintiff and defendant No.2 and wife of defendant No.1, from one Daya Shankar Bhargava through registered sale-deed dated 4th May 1967. Smt. Bhagwati Devi was the exclusive owner and in possession of the said property. She expired on 20th July 1978 without having made any gift or 'will' regarding the said property. It was further pleaded that there were three legal heirs of Smt. Bhagwati Devi i.e. her husband Shri Ram Charan Sharma (defendant no.1), elder son Shri Suresh Chand Pathak (defendant no.2) and younger son Yogesh Chand Pathak (plaintiff), thus each heir is entitled to descend ⅓rd share in her property, therefore, a decree for ⅓rd share of plaintiff in the disputed property, be passed.

5. The defendant no.1 Ram Charan Sharma, in his written statement, admitted the contents of plaint and contended that defendant no.1 is also entitled for ⅓rd share in the disputed property.

6. The defendant No.2 Suresh Chand Pathak filed a separate written-statement wherein he pleaded that the deceased Smt. Bhagwati Devi had already partitioned the disputed property equally in favour of plaintiff as well as defendant No.2.

7. The learned trial court, on the basis of pleadings of the parties, framed four issues, which are reproduced in the impugned judgment passed by the trial court.

8. In support of the case, the plaintiff examined himself as PW-1. The defendant No.1 neither examined himself nor examined any witness on his behalf. Defendant No.2 examined himself as DW-1.

9. The learned trial court, after considering the submissions of all the parties and examining the evidence available on the record, while deciding Issue No.2, recorded a finding that the disputed property had already been partitioned by late Smt. Bhagwati Devi equally in between plaintiff Yogesh Chand and defendant No.2 Suresh Chand, her both sons, therefore, the disputed property cannot be divided now and consequently decided Issue No.2 in favour of the defendant No.2 and against the plaintiff as well as the defendant No.1. In view of the finding on Issue No.2, the Issue No.3 was also decided by the trial court in favour of the defendant No.2 and against the plaintiff as well as defendant No.1. Consequently, the suit filed by the plaintiff-respondent no.2 for partition of the disputed property was dismissed vide impugned judgment and decree dated 15.07.1991. Being aggrieved with the same, the defendant no.1 Ram Charan Sharma preferred the present regular first appeal.

10. During the pendency of this appeal, the sole appellant Ram Charan Sharma expired on 22.06.1992 and an application was filed on behalf of Smt. Sanno Pathak W/o Yogesh Chand Pathak (plaintiff-respondent No.2) for her substitution in place of deceased-appellant Ram Charan Sharma on the basis of registered-will dated 16.03.1985 executed by Ram Charan Sharma in favour of Smt. Sanno W/o Yogesh. The said application was allowed by this Court and name of Smt. Sanno W/o Yogesh Chand was substituted in his place subject to just objection by the respondents.

11. The learned counsel for the appellant contended that