NIRMALA Vs. RUKMINIBAI

JUDGEMENT

(1.) Appellants herein, the defendants in the trial court, have preferred this appeal under S. 96 of the Code of Civil Procedure against the judgment and decree dated 8-2-1988 passed by the II Additional Civil Judge, Belgaum in Original Suit No. 12 of 1982 decreeing the suit of the respondents for declaration and possession of the suit schedule properties.

(2.) We have heard the learned counsel for the appellants and the learned counsel for the respondents fully and perused the records.

(3.) Respondents filed a suit against the appellants on the following averments: That the suit properties were owned and possessed by one Narayanrao Subhanji Mugalikar who was the husband of plaintiff No. 1 and father of plaintiff No. 2. He died intestate in CTS No. 2338 on 21-12-1978. On his death, respondents 1 and 2 who are the widow and daughter of Narayan Mugalikar succeeded to his estate as Class-I heirs under the Hindu Succession Act, 1956 and as such they become the owners of the suit properties and are entitled to possession of the same. Narayanrao married plaintiff No. 1 in or about 1942. In the course of business as carpenter he prospered and extended his business as Timber Merchant with some partners, and he also put up a saw mill which he run as a sole proprietary concern. He leased the saw mill to defendant No. 8 on a rental of Rs. 600/- per month, some time prior to his death. Narayanrao came in contact with defendant No. 1 some time by the end of 1948 or in the beginning of 1949. In the course of time, he developed illicit intimacy with her which led Narayanrao to dislike his wife plaintiff No. 1. He became so infatuated with defendant No. 1 that he became her slave, and, defendant No. 1 started visiting Narayanrao's house often on different pretexts which led to straining of relations between Narayanrao and plaintiff No. 1. Sometime thereafter, defendant No.1 came to the house of Narayanrao and started living with him though plaintiff No. 1 resisted this move and plaintiff No. 1 was driven out of the house by Narayanrao and defendant No. 1. Since then plaintiff No. 1 has been residing in her parental place at Kadnur. Narayanrao stayed with defendant No. 1 openly in CTS No. 2338. There was no marriage of any sort between Narayanrao and defendant No. 1 at any time. But still defendant No. 1 started styling and conducting herself as the wife of Narayanrao, and, Narayanrao in turn treated her as his wife. Defendants 2 to 7 were born to defendant No. 1 on account of the relationship between Narayanrao and defendant No. 1. As defendant No. 1 was describing herself as wife of Narayanrao, consequently defendants 2 to 7 came to be described as children of Narayanrao. Plaintiff No. 2 was married in 1971 and she is living with her husband at Shahapur, Belgaum. Defendant No. 1 was a kept mistress of Narayanrao since 1950 and defendants 2 to 7 were born to her as a result of that illicit relationship. There was no marriage between Narayanrao and defendant No. 1 and hence defendants have no right of any sort in the properties left behind (by) Narayanrao after his death. After the death of Narayanrao defendants continued to occupy CTS No. 2338 and they also came in possession of the premises wherein the saw-mill situate and started recovering rents for the said saw mill from defendant No. 8; and, the defendants thus are in actual possession and control of the entire suit properties. Though the plaintiffs called upon the defendants to hand over the possession of the suit properties, they did not agree to do so, and on the other hand gave a reply to their notice. Defendant No. 2 gave worthy to the City Survey Officer, Belgaum to the effect that after the death of Narayanrao plaintiffs and defendants are entitled to the estate of Narayanrao and their names shall be mutated in the place of deceased Narayanrao. Plaintiffs have been residing separately from Narayanrao since 1948. As the defendants have no right, title and interest in the suit properties left behind by Narayanrao after his death and since the defendants were not agreeing to comply with the demand of the plaintiffs for handing over the possession of the suit properties, plaintiffs were constrained to file a suit.