JUDGMENT :

Vivek Rusia, J.

Heard on the question of admission with records of courts below.

1. The appellant/plaintiff (Since deceased now represented by their legal heirs and hereinafter referred as "plaintiff") has filed the present appeal being aggrieved by the judgment and decree dated 29.11.2014 passed by 21st Civil Judge, Class-I Indore and judgment dated 06.08.2019 passed by 25th Additional District Judge, Indore whereby the suit and first appeal have been partly allowed.

2. Facts of the case in short as under:

As per averment, in the plaint, the plaintiff is a son of late Sidhnath from his first wife late Parwati Bai. After the death of Parwati Bai, Sidhnath kept Ghisibai as a wife who gave birth to the defendants namely Mansharam, Mishrilal and Permanand. The Sidhnath died in the year 1999 and left 37.05 bigha land. The details of the survey numbers total in 14 located in Gram Buranikhedi, Tehsil and District Indore are mentioned in Schedule-A of the plaint. In the year 1960 the plaintiff at the age of 20 years got an employment in the Forest Department and from his saving and some Streedhan of his wife, he purchased 5 bigha of land of Gram Buranikhedi from one Ramu Maharaj in the name of his father. Thereafter he purchased 7 Bigha of land from Ramu Maharaj. During his life time, his father also purchased 5 bigha of land from Ramu Maharaj. After the death of father 3-4 years in presence of relative and villagers, he gave a consent to give certain land left by late Sidhnath to the defendant No. 2 and 3 despite they had no right and title in it. On the basis of said consent, his father had partitioned the property in 3 part and by which a Talaiwala Khet approximately 6 bigha came into his share, 5 bigha of land purchased from Ramu Maharaj was given to Mansharam and 5 bigha of land was given to is in dispute. Accordingly, the plaintiff, defendants Mansharam and Ramnath received 1/3-1/3 share in the family property. According, to the plaintiff, Mishrilal was lunatic since birth therefore, he was not given any share and during pendency of suit, later on, he died.

The plaintiff has further pleaded that his mother Parwati Bai was also entitled to get half share in the property of late Sidhnath and accordingly, he is entitled for his 1/4th share as well as 1/8th share of his mother but defendants have filed an application for partition before the Tehsildar, hence, cause of action accrued for filing the present suit seeking partition by metes and bounds.

The defendant No. 1 to 4 and 6 to 9 filed the written statement denying the averments made in the plaint by submitting that the mother of the plaintiff died 50-55 years ago and at that time, the plaintiff was minor and he was brought up by the defendant No. 1. After the death of the first wife, the Sidhnath performed the second marriage. The Mishri lal was not lunatic but he was suffering from paralysis hence entitled to get a share with other family members. The Sidhnath purchased the land from is own income from Ramu Maharaj in which the defendant No. 1 to 4 have share. The defendant No. 2 Mansharam purchased the land from his income from Ramu Maharaj in the name of his wife in which neither the plaintiff nor other defendant has any share and the said land be kept out of this suit property. During his lifetime, the Sidhnath had partitioned his property on 11.01.1973 between plaintiff and defendant No. 1 to 4 in which the plaintiff and defendants gave consent.

On the basis of the pleadings, the trial court framed eight issues for adjudication, which are as under: