RAMCHANDRA SAKHARAM MAHAJAN Vs. DAMODAR TRIMBAK TANKSALE

JUDGEMENT

(1.) This appeal arises out of Special Leave Petition (Civil) No.9739 of 2005. The plaintiff in a suit for declaration of joint title with defendant nos.10 to 13, for recovery of possession of the plaint schedule property and for mandatory and prohibitory injunctions, is the appellant in this appeal. He filed Civil Suit No.53 of 1990 against the defendants 1 to 9. On objection being raised by defendant 1 to 9, the plaintiff also impleaded defendants 10 to 13 who he claimed were co- owners with him of the suit property.

(2.) According to the plaintiff, the suit property was blocked in new khasra no.327 and recovery of possession was sought in respect of 73 cents in the north-western corner of the said khasra. The case of the plaintiff is that new khasra no.327 along with khasra nos.329, 330 and 331 out of Mouza Sitabuldi, Circle No.19/27, Division No.8 at District Nagpur belonged to a Muslim family and the property was granted on lease to Balwantrao Mahajan, a predecessor-in-interest of the plaintiff. The lease deed executed in that behalf was dated 21.7.1875. The predecessors of the plaintiff had permitted the predecessors of defendants 1 to 9 to occupy a portion of the leasehold property on licence. While in such occupation, defendants 1 to 9 had demolished the structure that had been originally put up for residence in the property and were attempting to raise a commercial construction therein and to exploit the property commercially. Defendants 1 to 9 were not entitled to do so and the plaintiff was entitled to recover possession on the strength of his title. The plaintiff had pleaded that there had been a partition between him and defendants 10 to 13, but the subject matter of the suit was not divided and consequently it continued under the joint title of the plaintiff and defendants 10 to 13. Defendants 10 to 13 did not support the case of the plaintiff. For reasons of their own they purported to disown any title in the suit property. According to the plaintiff, they had been got at by defendants 1 to 9.

(3.) Defendants 1 to 9 denied the claim of the plaintiff and set up title in themselves. The licence pleaded by the plaintiff was denied. The right of the plaintiff to recover possession was questioned. It was contended that defendants 1 to 9 were in possession of the property and their family had long been in possession thereof in their own right and the plaintiff was not entitled to any relief.