GURUDAS S. SHIRODKAR Vs. CHANDRAKANT SHIRODKAR

JUDGEMENT

(1.) By the present appeal the Appellants (heirs of original Defendant) assail the concurrent finding rendered by the two Courts below in favour of the Plaintiff (Defendant herein). For the sake of convenience the parties are referred to by their status in the original proceedings; as Plaintiff and Defendant.

(2.) The Plaintiff and the Defendant are real brother and the property involved in litigation is house bearing No. 450A situated at Davorlim described in Land Registration Office No. 121 of pages 140 to 153 and enrolled with Land Registration Officer under No. 51.

(3.) The Plaintiff initially filed a suit, seeking judgment and decree restraining the Defendants permanently from interfering in the suit house No. 450A. The said relief was claimed by pleading that the Plaintiff had purchased plot 'A' of the property known as "Santgalichem Mola" situated at Davorlim Village Panchayat Davorlim and enrolled for matrix under No. 51. On purchase of the said plot, the residential house was construed by the Plaintiff which came to be registered as house No. 450 for tax purpose. It is pleaded that the Plaintiff is paying house tax to the Panchayat for the said house. It is averred that when the house was constructed the Defendant was working at a distant place and as there was no place for him to stay, the Plaintiff accommodated him. The Plaintiff's sister also came to stay in the said house and since there was extension of the family, he constructed another house in the year 1983, by the side of the old house which came to be registered in the Panchayat office as 450A. The Plaintiff is also paying house tax in respect of the new house. The new house of the Plaintiff comprised of one entrance, two rooms and one kitchen and the total plinth area is 45 sq.mts. but on account of the enhanced number of members in the family, it was found to be insufficient. The Defendant picked up a quarrel with the Plaintiff on account of his share in the property and he received a notice through an Advocate on behalf of the Defendant claiming joint ownership. Since the Defendant challenged the Plaintiff that he would forcibly enter into the new house and made some attempts to realise the said threat, the Plaintiff instituted the suit based on the cause of action dtd. 1/2/1985 when the Defendants made an attempt to encroach into the said property. During the pendency of the suit the Defendants managed to gain entry into the house No. 450A and thereafter by amending the prayer clause, the Plaintiff sought declaration as owner of the suit house and also claimed possession of the said portion of the house which was occupied by the Defendant.