SUSHILABAI PIRAJI GAJABHARE Vs. RAOSAHEB SITARAM VANKHEDE

JUDGEMENT

(1.) THE present appellants/original plaintiffs initiated Regular Civil Suit No. 407/1980 against the present respondents original defendant for recovery of possession of their ancestral house bearing Gram Panchayat House No. 5 as properly as described in the plaint. The plaintiffs case, in short, is that the plaintiffs happened to be the owners and possessors of the suit house having five Zinc sheets and RCC roof with its Courtyard admeasuring 22 ft. North-South and 15 feet East West; along with the assetion that the property is the ancestral property of plaintiff No. 1s husband and of plaintiffs Nos. 5 and 6. On 4th August, 1980, Piraji, the husband of the plaintiff No. 1 Sushilabai expired. He was survived by plaintiff Nos. 1 to 4 as his legal heirs. The plaintiff No. 1 happened to be the wife, the plaintiff Nos. 2, 3 and 4 happened to be the sons and daughters. The plaintiff Nos. 5 and 6 happened to be the brothers of late Piraji. It is the case of the plaintiffs that the plaintiff No. 1 and her husband were at village Ardhapur Tq. Nanded since last one year for the purpose of labour work, Piraji died there only. The plaintiffs 5 and 6 who happened to be the brothers of Piraji were also away from the village in search of job. It is the case of the plaintiffs that taking an undue advantage of their absence from the village, the defendants forcibly took possession of the suit property and this action of the defendants was absolutely illegal. Naturally having come to know about this fact, the plaintiffs asked the defendants to vacate the premises in question and to hand over the possession.

(2.) THE defendant No. 1 Raosaheb told the plaintiffs that he had purchased the suit property by a registered sale-deed on 7th August, 1980 from defendant No. 2 Begaji s/o Dawaji Gajabhare. The defendant No. 1 stated that since the date of purchase, he is in possession of the suit house as an owner thereof and on that ground the defendant No. 1 refused to vacate the premises in question. The defendant No. 2 contended that the plaintiff was not the owner of the suit house. He further denied that the property happened to be the ancestral property of the plaintiff No. 1s husband and the plaintiff Nos. 5 and 6. It is contended that the husband of the plaintiff No. 1 i. e. Piraji was at Nanded since last 12 to 15 years where he died. The defendant No. 2 further contended that the plaintiffs 5 and 6 are out of village Mendale since more than twenty years and that the story of dispossession on 15th August, 1980 was incorrect. The defendant No. 2 denied to have taken an illegal possession of the house in question on the said date. Taking into consideration the relationship between the contesting parties necessary genealogical tree is already referred to in the judgment by the learned Judge of the trial Court which is not disputed and can be very well relied upon for all practical purposes for the decision of the present matter. In short, the defendants resisted the suit on all counts with one additional specific plea which is said to be the plea of adverse possession to which a reference has been made in paragraph 8 of the written statement.

(3.) ON the basis of the pleadings of the parties necessary issues were framed by the learned Judge of the trial Court, evidence is adduced by the parties in support of their contentions and, the learned Judge of the trial Court, after appreciating the evidence reached to the conclusion that the plaintiffs did prove that the suit house belongs to them i. e. belongs to the branch of Bhagoji, who happened to be brother of Dawaji, father of the defendant No. 2. It is, however, clear that defendant No. 2 happened to be the nephew of Bhagoji. Taking into consideration the findings on this issue, the learned Judge of the trial Court naturally held that the plaintiffs were entitled for recovery of possession of the suit premises. In the background of these findings, the learned Judges also tried to weigh the case of defence as regards adverse possession which the learned Judge rejected holding that the defendants had to be precise, the defendant No. 2, failed to prove his case for adverse possession. Naturally, the learned Judge of the trial Court also held that the plaintiffs were entitled for a declaration that the sale deed dated 7th August, 1980 was illegal and not binding on the plaintiffs. In short, the suit of the plaintiffs for recovery of possession has been decreed and the sale deed dated 7th August, 1980 executed by the defendant No. 2 in favour of the defendant No. 1 pertaining to the suit property has been declared to be ineffective and not binding on the plaintiffs. This necessarily prompted the learned Judge of the trial Court to grant the further reliefs to the plaintiffs by passing an order perpetually restraining the defendants from alienating the suit house to any other person. This judgment and order is dated 8th December, 1981.