( 1. ) THIS appeal under section 100 of the Code of Civil Procedure is by defendants 1, 4 and 5 against the judgment and decree dated 29-7-1976 passed by the Additional District Judge, Seoni, in Civil Appeal No. 11-A of 1976, decreeing the suit of the plaintiffs.

( 2. ) THE plaintiffs had filed the present suit for partition and separate possession with reference to the suit property claiming 46/88th share and according to them defendants 1 to 3 each were entitled to 14/88th share and the rest of the defendants could prescribe no claim. It would be necessary in the present appeal to describe the relationship on the basis of which the claim has been advanced by the plaintiffs. One Lalmiyan, who died several years ago, had three sons, namely, Idoomiyan, Murtejakhan and Mandu Miyan. Idoomiyan had a son Sherkhan. Both of them died leaving behind Abdul Matin son of sherkhan who is defendant No. 5-appellant No. 2. Murtejakhan died on 2-5-1950. He had three wives. The first wife Mst. Umraiyya Bi died leaving behind her son Mustafakhan (defendant No. 1-appellant No. 1 ). His wife is mst. Fatmabi (defendant No. 4-appellant No. 3 ). The second wife Mst. Mahrum Bi also died leaving behind her daughter Mst. Khutijulkubra Bi (plaintiff No. 2-respondent No. 2 ). The third wife Mst. Hayatbi (plaintiff No. 1-respondent No. 1) is still alive and she gave birth to four daughters and two sons :

1. Mst. Sabiabi (plaintiff No. 3-respondent 3)2. Mst. Sugrabi (plaintiff No. 4-respondent 4)3. Mst. Aamnabi (plaintiff No. 5-respondent 5)4. Mst Jaitunbi (plaintiff No. 6-respondent No. 6)5. Muntejakhan (defendant No. 2-respondent No. 7)6. Muktedakhan (defendant No. 3-respondent No. 8 ).

Thus, the dispute is between the daughter of the second wife Mst. Mahrum Bi and four daughters of the third wife Mst. Hayatbi on one side and son from the first wife of Murtejakhan, his wife, grand son of Idoomiyan and two sons from the third wife of Murtejakhan. The disputed property is 105. 31 acres of land and some houses located in mouza Atri in tahsil and district Seoni which was held by Murtejakhan as a protected thekadar under the C. P. Land Revenue act, 1917. Besides that, another piece of land measuring 14. 29 acres located in mouza Saleh-Bharrai, tahsil Waraseoni, district Balaghat was held by Murtejakhan as two annas proprietor. After the death of Murtejakhan on 2-5-1950, his son Mustafakhan (defendant No. 1) was appointed as a protected thekadar by the revenue authorities on 21-8-1950. Thus, the plaintiffs filed the present suit as defendant No. 1 refused to give them any share in the suit property. The plaintiffs based their claim on the basis that they being heirs of Murtejakhan were entitled to a share in the suit property and for separate possession after the thekadari rights came to an end on coming into force of the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (1 of 1951) (hereinafter referred to as "the Abolition Act" ).

( 3. ) AS regards defendants 2 and 3 they accepted the allegations and claim advanced by the plaintiffs. The case was contested by defendants 1, 4 and 5. They, vide their joint written-statement, pleaded that defendant No. 1 after having been appointed as a protected thekadar on 28-8-1950 he alone had become the owner of the lands and houses appurtenant to the thekadari located in village atri while with regard to the other suit property located in mouza Saleh-Bharrvi, the defendant did not dispute the claim of the plaintiffs as that property was held by Murtejakhan in proprietary rights. According to them, after coming into force of the Abolition Act, 1951, defendant No. 1 had become an occupancy tenant under section 39 of the Abolition Act and thereafter on coming into force of the M. P. . Land Revenue Code, 1954 he became a Bhumidhari under section 147 (a) and subsequently after coming into force of the M. P. Land Revenue Code, 1959 he became a Bhumiswami under section 158 of the said Code.