Mere admission of property as ancestral in a partition suit does not merit a decree without considering all relevant facts and necessary parties.

1. This appeal takes exception to the judgment and decree dated 6th July, 2012 passed in Regular Civil Suit No. 195/2009 which was confrmed in Regular Civil Appeal No. 229/2012. Parties are referred to by nomenclature in the suit.

2. Plaintiff fled suit for partition and separate possession of 1/3rd share in 2 H land from Gat No. 535. Plaintiff is elder son of defendant No. 1 and brother of defendant No. 2. Defendants No. 2 and 3 are the wife and son of defendant No. 1. It is the case of plaintiff that the suit property is an ancestral property of plaintiff and defendants and that he asked for partition thereof on 1st January, 2009, and since the same was refused, the suit came to be fled.

3. Defendant No. 1 fled written statement wherein it is admitted that the suit property is the ancestral property however, it is claimed that there was already partition in respect of the said property and plaintiff as well as defendants are in possession of their respective shares. It is further averred that the plaintiff has not included all joint family properties in the suit nor has made his sister as a party and hence, tenability of the suit was challenged.

4. After framing of issues, plaintiff examined himself (Exhibit 54) and claimed that the suit property is the ancestral property. He also examined Laxmikant (Exhibit 69) to prove that vide Partition Deed (Exhibit 70) Gat No. 535 was partitioned.

5. Learned counsel for plaintiff, apart from oral submissions, placed on record short notes of argument and substantial question of law. It is his contention that only defendant No. 1 has fled written statement and therein it is admitted that the suit property is ancestral property and therefore, on the basis of this admission itself, decree ought to have been passed by the Trial Court. To support his contention, he placed reliance on the provisions of Order 8 Rule 5 read with Order 12 Rule 5 of the Code of Civil Procedure contending that this is a case where there is specifc admission about the suit property being ancestral property which ought to have resulted in passing decree on admission. This aspect is not considered by both the Courts below. It is also argued that the Trial Court has relied upon the admission on the basis of suggestion made to the plaintiff in the cross-examination which is not probable and which, according to him, is apparently recorded out of misunderstanding. In this regard he also referred to further suggestion made to the plaintiff that he has fled a false suit though previous partition of the family properties was effected which is denied. To support his contentions, he placed reliance on following judgments :-

(i) Lohia Properties (P) Ltd. Tinsukia, Dibrugarh, Assam vs. Atmaram Kumar (1993) 4 SCC 6 (ii) Manoj A. S. Dhargalkar & others vs. Taramati Harichandra Salgaonkar & others. 2000(4) BomCR 508.

(iii) Laxman Zingraji Adhau vs. Sushila Zinguji Thakre & others 1995(4) BomCR 677.

6. Learned counsel for defendants supported the judgment and decree of dismissal of the suit. It is contended that pleadings of the parties, issues framed and admissions given by plaintiff in the cross examination are suffcient to justify dismissal of the suit.

7. There cannot be two opinions about the preposition of law laid down in the judgment cited supra. However, it needs to be applied having regard to fact and circumstances of case, pleadings and evidence. There could be situation that admission of the fact in written statement may lead to passing of decree on admission, which may not be possible in another case.

8. No doubt, defendant no