RAGHUNATH MALLU BASTAVADE Vs. RAMA BASALINGA BASTAWADE

JUDGEMENT

(1.) This appeal is directed against the Judgment and decree of the Court of the Principal Civil Judge, Chikodi in R.A. No. 111 of 1974 reversing the Judgment and Decree of the Court of the Munsiff, Chikodi, in O.S. No. 217 of 1972.

(2.) The appellants herein were defendants in the trial Court in a suit by the respondent plaintiff for a permanent injunction restraining them from interfering with his possession of the share of their brother Khandu in the suit lands R.S. No. 212/1 and 211/1 of Hanchinal Village in Chikodi Taluka.

(3.) The brief facts are that Baslinga-propositus left behind three sons, namely, Mallu, Khandu and Ramu and died about 15 years before the institution of the suit. His son Mallu died in 1968 leaving behind his wife Paru - 4th defendant, Raghunath - the 1st defendant and Siddu - the 2nd defendant. 3rd defendant is the wife of Siddu. Khandu died unmarried. Deceased Baslinga had 1/3rd share in the suit lands aforesaid and was enjoying the same separately being in actual possession of the same. That for about 15 years prior to the institution of the suit the plaintiff alleged that they were in separate enjoyment of their different strips in these lands. Sketch was appended to the plaint showing three separate strips without giving their measurements and marking the share of Khandu with red pencil shade. He also alleged that three sons of Baslinga divided 1/3rd share left behind by their father into three strips and enjoyed them separately, though this private division was not recorded in village records. Mallu their brother died in the year 1968 as already stated and after his death Khandu their second brother sold his 1/9th share in R.S. No. 212/1 to the plaintiff for Rs.500/- on 25-9-70 and handed over actual possession to him. This transfer was mutated in the village Records and adding his 1/9th share to the 1/9th share of the plaintiff. Thus, the plaintiff has 2/9th share in this land. The plaintiff-respondent came in possession of Khandu's share. Khandu died on 3-11-1971 and he became entitled to his estate and therefore his share in R.S. No. 211/1 and a house possessed by him devolved on him. He pleaded that he was in actual possession of divided shares, the defendants were obstructing in actual possession of the same and therefore they may be restrained by permanent injunction. Later, the suit was amended for an alternate relief that in the event of the Court finding that no such strips were effected he prayed for a permanent injunction restraining the defendants from enjoying 2/3rd share in the entire 1/3rd family share.