CHIMANLAL BABARBHAI PATEL Vs. DIVALIBEN BABARBHAI PATEL

JUDGEMENT

(1.) This First Appeal under section 96 of the Code of Civil Procedure is preferred by the appellant herein original plaintiff against the judgment and order dated 30.04.1991 passed by the learned City Civil Court, Ahmedabad in Civil Suit No.4668 of 1987 by which the learned Trial Court has dismissed the said Suit.

(2.) Appellant herein is original plaintiff and original respondents are original defendants. Plaintiff preferred Civil Suit No.4668 of 1987 before the City Civil Court, Ahmedabad for declaration that the defendants have illegally trespassed into the suit house and to have possession of the same from the defendants with mesne profit at the rate of Rs.1500/- per month from 13.12.1986. It is the case of the plaintiff in the suit that house bearing Block No.2/B situated at Gandhinagar Cooperative Housing Society, Near Ramkrishna Ashram, Khokra, Mahemaadavad, Maninagar, Ahmedabad belogned to his mother Shantaben Babarbhai Patel. It is the case on behalf of the plaintiff that defendant no.1 is the widow of Babarbhai Pujabhai Patel and defendants nos.2 and 3 are his daughters. It is averred in the plaint by the plaintiff that his mother Shantaben came to reside with Babarbhai Pujabhai Patel as his wife since 1945- 46 and at that time Shantaben had taken plaintiff with her as Angaliyat Son. It is the case on behalf of the plaintiff that his mother was serving as teacher in Municipal School and having good income. It is averred in the plaint that his mother Shantaben died on 13.10.1986, while Babarabhai Punjabhai predeceased on 12.03.1979. That Shantaben had purchased the suit house, but however, since 11.01.1965 it was in the joint names of Shantaben and Babarbhai. That after the death of Babarbhai it has been mutated in the name of plaintiff's mother Shantaben both in the records of the said Cooperative Housing Society, Municipality and the Government. It is averred in the plaint by the plaintiff that after the death of Babarbhai his mother Shantaben has come into possession of the suit house and on her death plaintiff had come into possession of movable and immovable properties. It is averred in the plaint that defendants continued to stay illegally in the suit house and they are claiming rights therein. It is averred by the plaintiff that somewhere in 1983, the plaintiff's mother had constructed two additional rooms in the suit house. It is submitted that on the death of Shantaben, plaintiff has become owner of the suit house by succession and since the defendants have illegally trespassed into suit house, he is entitled to recover possession from them with mesne profit. Therefore, the plaintiff filed the aforesaid suit.

(3.) Defendant Nos.1 and 2 resisted the said suit by filing written statement at Exh.14. Defendant Nos.1 and 2 have not denied that the plaintiff's mother Shantaben had come to stay with the deceased Babarbhai but they have denied that the deceased Shantaben was the wife of deceased Babarbhai. They have contended that relation between Shantaben and Babarbhia were like that of husband and wife but they were never legally married. They have admitted that Shantaben was serving in the School but they have denied that she had good income and from the savings she purchased said suit house. Defendants have contended that as per last wish of Babarbhai, Shantaben was allowed to stay in the suit house and they did not take any steps to evict her. The defendants contended that Gandhinagar Cooperative Housing Society was formed in 1953 wherein deceased Babarbhai was taken as its member and as such he came into possession of the suit house. The defendants have contented that after the death of Babarbhai in 1979 the defendants have become owners of the suit house by succession. The defendants have admitted that two rooms were constructed in the suit house after the death of Babarbhai. But they have denied that the rooms were constructed by Shantaben with her own money. Defendants have denied that they were trespassers, they have therefore, contended that plaintiff is not entitled to recover possession of the suit house and also mesne profit and requested to dismiss the Suit.