VISHNU PANDU YADAV Vs. MAHADU BABURAO YADAV PATIL

JUDGEMENT

(1.) THIS is an appeal against a decree of the Civil Judge, Senior Division, Satara, in Special Suit no. 6 of 1946. The plaintiff, as an adopted son of one Baburao, filed the suit for possession of items Nos. 1 to 18 as described in Schedule A annexed to the plaint, and for recovery of mesne profits for three years prior to the date of the suit at the rate of RS. 245 per annum and for future mesne profits at the rate of Rs. 400 per annum from the defendants. The learned trial Judge has passed a decree in his favour awarding him possession of lots Nos. 1 to 18 and Rs. 645 by way of mesne profits for three years prior to the date of the suit have been awarded against defendants 1 and 2, Rs. 90 against defendants 3 and 4, and future mesne profits at the rate of Rs. 350 from defendants 1 and 2 and Rs. 60 from defendants 3 and 4. Mesne profits after the date of the decree are ordered to be ascertained under Order 20, Rule 12, Clause (c), Civil P. C. It is against this decree that defendants l and 2 have come in appeal.

(2.) ONE Hanmant died on 9-10-1907. He had two sons and one daughter by name Dhondubai. He had a wife by name Bayaja. Babu, the eldest son of Hanmant, was the first to die on 28-9-1907 After him Hanmant died on 9. 10. 1907, and about a month thereafter Anna, the second son of Hanmant, died on 8-11-1907. Babu died leaving him surviving his widow Bhagirthi, who is defendant 5 in the present litigation. Hanmant's widow Bayaja survived him. Anna died unmarried. Bayaja died on 11-4-1910. On the death of Bayaja, Dhondubai the daughter of Hanmant became the owner of the property by inheritance to Anna, who was the last male holder. After the death of Bayaja, suit No. 2782 of 1910 was filed by Bhagirthi on 29-10-1910, against Dhondubai contending that her husband Baburao was the last male holder of the properties in the possession of Dhondubai and accordingly she (Bhagirthi) was heir to the property last by Baburao and that Dhondubai had no right or interest in the property. During the pendency of that suit Bhagirthi and Dhondubai arrived at a compromise, which was recorded as a consent decree on 12-6-1912, whereby Bhagirthi was given lots NOS. 1 to 8 and 17 and 18 in the present suit and three other properties which are referred to in the present suit as lots NOS. 19 and 20 and a half share of lot No. 21. The remaining properties, that is, lots Nos. 9 to 16 and a half share of lot No. 21 remained with Dhondubai. On 21-6-1912, Bhagirthi sold to defendant 8 lots Nos. 17 and 18 of the properties which she bad acquired under the consent decree. On 13-3-1918, Bhagirthi sold to Dhondubai for a sum of Rs. 1000 lots NOS. 1 to 8 and 19 and 20 and a half share of lot no. 21. On the same day Dhondubai sold the properties purchased by her from Bhagirthi to Pandu, the father of defendant 1. Defendants 1 and 2 have become the owners of those properties sold by Dhondubai on the death of Pandu. As a result of the alienations Bhagirthi did not retain any interest in the properties of Anna which she acquired under the consent decree. Defendants 1 and 2 became the owners of lots Nos. 1 to 8 and 10 to 19 and 20 and a half share in lot no. 21 under the sale deed dated 13-3-1913, executed in their favour by Dhondubai.

(3.) ON 23-6-1938, Bhagirtbi, the widow of Babu, adopted the plaintiff Mahadu as a son to her deceased husband. Dhondubai died thereafter on 16-10-1938, and the properties which she had inherited from Anna and had remained undisposed of were claimed by defendant 3 Dhoudubai's daughter as an heir. The plaintiff Mahadu thereafter filed the present suit against defendants 1 and 2, daughter's son and daughter respectively of Dhondubai for possession of Anna's properties, i. e. , lots Nos. 1 to 16, and against defendants 3 and 4 as the alienees of lots Nos. 17 and 18. Bhagirthi was impleaded as defendant 6. It was the case of the plaintiff that properties lots Nos. 19 and 20 were watan properties and were in his possession at the date of the suit, as the watandar. It is his case also that property lot No. 21 was in his possession and therefore he did not make any claim against the defendants in that respect. The learned Judge in the Court below granted a decree in favour of the plaintiff for possession of lots NOS. 1 to 18 on the ground that whatever may have been the result of the litigation between Dhondubai and Bhagirthi, the decree passed in that litigation did not bind the plaintiff. He held that the plaintiff was entitled to obtain possession of the properties of Anna which had devolved upon Dhondubai and that he was not bound by any alienation which may have been effected by Dhondubai.