DATTA DAU SHRAWALE Vs. NAMDEO JALBAJI DIWEKAR

JUDGEMENT

(1.) The above Second Appeal arises out of the judgment and decree dated 04.10.1994 passed by the Additional District Judge, Pusad in Regular Civil Appeal No. 59/1990 by which, the decree dated 22.02.1988 passed by the Joint Civil Judge, Junior Division, Pusad in Regular Civil Suit No. 159/1978, has been confirmed. The 3 above Second Appeal raises the substantial questions of law as mentioned in ground Nos. 5, 11 and 12 of the memo of Appeal. The same read thus:

(2.) The Respondent herein is the original Plaintiff. The suit site is an open site bearing Municipal property No. 37, admeasuring 60 feet in length from South to North; 30 feet in width from East to West, bounded towards East by open site of Punjabai; towards West by the road and house of Chandrakant; towards South by West side land of Sawitribai and to the North, houses of Sakharam, Hiraman and Ukanada, whereupon there is a Samadhi and a platform admeasuring 16 x 10 feet on the NorthWest corner, which is owned by the Plaintiff. It is the case of the Plaintiff that the said suit site is an ancestral property. His name is shown in the Municipal assessment list, as its owner. It is further the case of the Plaintiff that he is 5 regularly paying the taxes to the Municipal Council. The Plaintiff was a member of Armed Forces, but was discharged from the Armed Forces since he lost his eye sight on the Front. It is his case, that the Defendants took undue advantage of his absence, blindness and helplessness, and encroached upon the suit site on 27.10.1977 and constructed a hut and a cattle shed on it. It is further the case of the Plaintiff that the Defendants gradually encroached upon the remaining portion/site finally on 13.03.1978 and dispossessed the Plaintiff. The Plaintiff. therefore, filed the suit being Regular Civil Suit No.159/1978 for possession against the Defendants.

(3.) It is the case of the Defendants that the suit site is their ancestral property and their father was in exclusive possession of it till 1977, and after the death of their father, they have inherited it. They denied that they have encroached upon the suit site and dispossessed the Plaintiff. According to the Defendants, the site wherein the Samadhi is situated, as also the tomb, is owned by them and its owner was their great grand father Shri Dau. The Defendants contended that the suit was bad for nonjoinder of necessary parties, as the Plaintiff had not joined one Bhagirathibai, who was daughter of Dau and who is their sister. The Defendants, therefore, prayed for dismissal of the suit.