DATTATRAY GOPAL PASALKAR Vs. SARASWATI JAGANNATH PASALKAR

JUDGEMENT

(1.) The above Second Appeal arises out of the judgment and order dated 20/10/2008 passed by the learned District JudgeI. Nashik by which the Appeal filed by the original Defendant No.1 came to be partly allowed, and the decree of the Trial Court decreeing the suit in question by issuing the declaration, mandatory injunction, mesne profit came to be set aside, and was restricted to only restraining the Defendants from interfering with the possession of the original Plaintiffs in respect of the land bearing CTS No.180/1 shown in map Exhibit 61 including rectangular portion of land CTS No.180/1 in which the well is situated.

(2.) The parties trace their lineage from common ancestor one Gopalrao Gangaram Pasalkar. The original Plaintiffs and the Defendants are heirs of the daughters in law Anusayabai and Saraswatibai of the said Gopalrao Pasalkar. The original Defendant No.2 Malatibai is the daughter in law of the said Gopalrao Pasalkar, who has expired during the pendency of the proceedings. The property which is the subject matter of the dispute is the self acquired property of the said Gopalrao. By execution of the Will in respect of the property bearing City Survey No.180 bearing House No.90 and House No.91 admeasuring 76 sq.yards approximately 636.11 sq.mtr, the said Gopalrao had divided and partitioned the same equally between the three daughters in law i.e. deceased Anusayabai, Saraswatibai and Maltibai. It seems that the portion given to the Defendant No.2 Maltibai is first in line to the western side of which is the portion given to Saraswatibai and 1/3 rd portion to the western side of Saraswati's property is the 1/3 rd portion of Anusayabai. The property described in Clause 30C of the City Survey No.180 i.e. western share along with the well situated therein and admeasuring 50 ft EastWest x 27 ft. NorthSouth i.e. the open space which had fallen to the share of the Plaintiff No.1's wife Anusayabai. The revenue entries were accordingly made in the property register in the name of Anusayabai and after the death of Anusayabai, the property devolved upon the Plaintiffs, and their names came to be recorded in the record of rights. It seems that the Defendants started having disputes with the Plaintiffs and it is alleged that they had encroached upon the share of the Plaintiffs from the western side to the extent of 3 1/2 ft. This resulted in Plaintiffs filing suit bearing Regular Civil Suit No.87 of 1992 for restoration of the portion of their property which the Defendants had encroached. It was the case of the Plaintiffs that the open space admeasuring 50 x 27 ft was in their possession along with the well situated therein. In the said suit a Court Commissioner by way of City Survey Officer was appointed. The property continued to be in possession of the Plaintiffs and they were using it. The matter was precipitated by the Defendants on 26/9/2000 when it was alleged that the Defendant No.1 brought stones and building material and stacked it in the open space thereby prohibiting the Plaintiffs from accessing their land, as it was the case of the Plaintiffs that the Defendant No.1 had encroached upon the portion of their open space admeasuring 50 x 27 ft.. The cause of action for filing the present suit had arising on 26/9/2000 when the Defendants had restrained the Plaintiffs from going to the well situated in the open space admeasuring 50 x 27 ft. The Plaintiffs therefore sought a declaration in the suit in question that the open space along with the well situated in Survey No.180 ;House No.90 be declared as owned by the Plaintiffs. The Plaintiffs also prayed for removal of encroachment by removing the stones stacked in the open space covering 50x27 ft and hand it over to the Plaintiffs. They also prayed for damages on account of the acts of the Defendants.

(3.) On behalf of the Defendants, the Defendant No.1 filed her written statement. The execution of the Will by the said Gopalrao is admitted by the Defendant No.1. However, it was denied by the Defendant No.1 that 1/3 rd share of the western side admeasuring 50 x27 ft. was given to the said Anusayabai along with the open space and the well situated therein as contended by the Plaintiffs. It was contended by the Defendant No.1 that it was clearly mentioned in the Will that Anusayabai would get 1/3 rd portion of the property abutting to the road along with the well. It was the case of the Defendant No.1 that the Plaintiffs have unnecessary raised a dispute by wrongly describing the property showing the size of the open space as 50 ft EastWest and 27 ft. NorthSouth by wrongly interpreting the recitals in the Will. It was denied by the Defendant No.1 that the size of the well was 50 x 27 ft. However, it was accepted by the Defendant No.1 that the Plaintiffs are the legal representatives and are entitled to succeed to the estate of the said Anusayabai. The fact of the property being sought to be encroached by the Defendant No.1 was denied. It was contended by the Defendant No.1 that City Survey Officer had carried out the measurement and had determined the shares of the parties to the suit showing each one of them was entitled to 1/3 rd share in the total property which belonged to Gopalrao Pasalkar. It is accepted by the Defendant No.1 that the portion of the property which had gone to the share of the Plaintiffs is City Survey Nos.180/1, and that City Survey No.180/2 came to the share of the Defendant No.1, and City Survey No.180/3 had gone to the share of the Defendant No.2, and that the maps are drawn and the entries are made in the property register.