RAM DAS ALIAS RAM SURAJ Vs. GANDIABAI

JUDGEMENT

(1.) This appeal by special leave to appeal granted under Article 136 of the Constitution of India brings in challenge the judgment and order rendered by the High Court of Bombay at Nagpur in Second Appeal No. 310 of 1989. By the impugned judgment and order the learned single Judge of the High Court dismissed the appellant plaintiffs second appeal and confirmed the decree of dismissal of his suit for partition and rendered by the Trial Court and as confirmed by the First Appellant Court. We shall refer to the appellant as plaintiff and respondents 1 to 7, heirs of original defendant, as defendants for the sake of convenience in the latter part of this judgment. The plaintiffs suit against the original defendant Prayag who died pending the litigation was based on the ground that defendant was his uncle. That his father Ram Prasad and the defendant Prayag were sons of one Balbhaddar Teli. That plaintiffs father and the defendant had joint interest in the suit properties which were inherited by their father from his ancestors. That as there was no partition of these properties during the lifetime of his father on the one hand and defendant on the other he had acquired one half undivided share in these properties along with the defendant who had the other half share. He, therefore, filed a Civil Suit No. 289-A of 1960 in the Court of the Civil Judge (Junior Division), Gondia against the defendant for partition and separation of his half share in the properties described in the Schedule attached to the plaint and for mesne profits. According to the plaintiff his grandfather Balbhaddar died in or about the year 1911 leaving behind him his two sons Prayag, original defendant, and Ram Prasad plaintiffs father plaintiffs father Ram Prasad died in or about the year 1938 leaving plaintiff Ram Das as his son, daughter Tulsabai and Kusumabai as his widow. Plaintiff was six months old when his father Ram Prasad died. According to the plaintiff as he was minor the properties after death of his father used to be managed by the defendant as Karta of the family. Property was thus in joint possession of the parties. That plaintiff was staying with his mother at Nagpur and defendant used to give his share in the crops every year. After attaining majority he sought for partition and separate possession of his one half share which the defendant refused and hence the aforesaid suit.

(2.) The defence of the original defendant was threefold. Firstly it was contended that plaintiffs mother after death of plaintiffs father Ram Prasad re-married one Ram Charan and before her remarriage with Ram Charan she gave the plaintiff in adoption to Ram Charan and consequently plaintiff had ceased to belong to the family of defendant and his deceased father Ram Prasad and consequently he had no right, title or interest in the suit properties. The second defence was that in the lifetime of plaintiffs father Ram Prasad there was partition of properties and Ram Prasad was given his share in co-ownership properties and other movables and, therefore, also plaintiff had no right, title and interest in the suit properties which on partion fell to the exclusive share of original defendant. The third defence was that in any case defendant had become owner of suit properties by adverse possession.

(3.) After recording evidence the learned Trial Judge came to the conclusion that all the three defences put forward by the original defendant were worth acceptance. In short the learned Trial Judge held that the plaintiff was adopted by his step-father Ram Charan before his re-marriage with plaintiffs mother and, therefore, plaintiff had no right, title or interest left in the properties of his deceased natural father. It was also held that there was partition between plaintiffs natural father Ram Prasad and the defendant during the formers lifetime and that the plaintiffs father had squandered away the properties which fell to his share and, therefore, also plaintiff had no share in the suit properties which had fallen exclusively to the share of the defendant on partition. It was also held that in any case the defendant had become owner of the properties by adverse possession.