DHAESA Vs. BANDAGISAB

JUDGEMENT

(1.) THE first Plaintiff is the appellant. The suit for declaration that the Plaintiff is the owner and possessor of the suit property and a decree for possession by evicting the defendants was decreed by the trial Court. But on appeal came to be dismissed by the first appellate Court. Hence the Plaintiff is before this Court in this regular second appeal.

(2.) ). The suit property is a land measuring 9 acres 38 guntas and a residential house bearing No. 3/70 originally belong to the mother of the Plaintiff namely Khasimbi. It was claimed that the properties were given to the mother in lieu of the Mehar. The Plaintiff's mother died 31 years prior to the filing of the suit and the plaintiff is the only survied heir. He was minor at the time of the death of the mother and his father was managing the property till his father was dispossessed illegally by the defendants. Defendants-1 and 2 were not related to each other. Defendant-2 has been married to one Badesab and later she was divorced by him. It appears, his father had a suit filed against him in O. S. No. 156/72 by the defendants-1 and 2 and decree for injunction was granted. On 26-10-1977, the defendants forcefully dispossessed the plaintiff. Consequently the present suit O. S. No. 56/1980 came to be filed.

(3.) WHILE denying the averments, the defendants 1 and 2 contended that the father of the first defendant was in possession of the suit property till his death as a owner. The plaintiff is not the son of late Khasimsab. On the other hand the first defendant is the son of the said Khasimsab and the 2nd defendant is a widow of the said Khasimsab. Defendant-1 is the step son of defendant-2 and 1st defendant's mothers name is also Khasimbi and she was the second wife of Khasimsab. Defendant-2 no doubt married one Badesab and had him divorced. After the divorce, she married the deceased Khasimsab about 20 years prior to the filing of the suit. The suit in O. S. No. 156/1972, res judicata, there is no question of dispossessing of plaintiff as the plaintiff has not been in possession at all. On the death of Khasimsab, the defendant alone became his heirs and succeeded to the properties. The Plaintiff's mother Khasimbi who is the daughter of Madansaheb; while the defendant's mother (Ashinsab) was no doubt married the Khasimsab but was divorced on 10-12-1350 (Fasli corresponding to 11-9-1941) in the presence of a Khazi. The divorce was accepted by the Plaintiff's mother and at the time of decree of earlier suit in O. S. 236/1951, the mother of the plaintiff was a divorced wife. The suit is also barred by limitation. Thus the suit was resisted.