MADHAVRAO WAMANRAO PATIL Vs. UDDHAV JANARTAN BARI

JUDGEMENT

(1.) This petition challenges the order dtd. 11/10/2013 passed by the learned Joint Civil Judge Junior Division, Shirpur, Dist. Dhule, below Exhibit-109 in Regular Civil Suit No.38/2003.

(2.) The petitioner is the original plaintiff and the respondents are the original defendants in R.C.S. No.38/2003, filed by the plaintiff for recovery of possession of the suit property, which is in possession of the defendants since the year 1980. The defendants resisted the suit by filing written statement contending that the plaintiff is not the sole owner of the suit property and other heirs of the deceased Wamanrao are also co-owners. Therefore, the plaintiff alone cannot institute suit for recovery of possession.

(3.) It is the case of the plaintiff that in the year 1980 his father Wamanrao borrowed Rs.16,000.00 from the father of defendants and as a security of loan the father of defendants was put in possession of the suit property. Agreement was executed between Wamanrao and the father of defendants that possession of the suit property was to be returned to Wamanrao on repayment of Rs.16,000.00 and Wamanrao will not pay interest of the loan amount and father of the defendants will not pay rent of the suit property. On 18/5/1992, father of the plaintiff Wamanrao passed away. The other heirs of Wamanrao relinquished their rights in undivided suit property in favour of the plaintiff. On 24- 09-2001, some of the issues of Wamanro executed a registered relinquishment deed in favour of the plaintiff Madhavrao. Thereafter, the suit was filed. On 6/9/2004, heirs of Ramesh (predeceased son of Madhavrao) executed relinquishment deed in favour of the plaintiff Madhavrao. Accordingly, mutation entries were made in the city survey record on the basis of two relinquishment deeds dtd. 24/9/2001 and 6/9/2004. The plaintiff filed his affidavit on examination-in-chief on 24/7/2006. The cross-examination of the plaintiff was continued for a period of six years. On 29/9/2010, 'no cross' order was passed against the defendants, as the defendants failed to cross examine the plaintiff. On 25/10/2010, plaintiff filed pursis Exhibit-80 for closing his evidence, in view of the fact that 'no cross' order was passed against the defendant and for about a month no steps were taken by the defendants for setting aside 'no cross' order. After this application was filed, the defendants filed application Exhibit-81 for setting aside 'no cross' order. By order dtd. 9/6/2011 'no cross' order was set aside by the trial Court and the plaintiff was cross examined. By the time, cross examination of plaintiff was conducted, he was running 78 years of age. According to the plaintiff, during the cross his memory failed and he deposed that there are no documents of relinquishment executed by Kalpanabai, wife of Ramesh.