NARGISBAI D B ACIDWALA Vs. JEHANGIR HOMUSJI MODY

JUDGEMENT

(1.) THIS is an appeal by the defendants in a suit for partition between co-owners. The property in dispute consists of portions of two Survey Nos. 110 and 115 at Goregaon near Andheri. The total area is a little more than nine acres, the assessment about Rs.25. The land forms part of a large estate called the Goregaon Estate, the superior holder or khot of which is Sir Byramji Jijibhoy. The land originally belonged to one Manmohandas and was sold by him in June, 1894, to Dr. Nanji the plaintiff's uncle and the plaintiff. Dr. Nanji sold his moiety to one Soonabai in May, 1895. She died about 1916. Her heir was her daughter Meherbai who was married to Manekji, first cousin of the plaintiff. Meherbai in turn was succeeded by her daughter defendant No.1. Defendant No.2 is her husband, So that the plaintiff and the defendants are cousins. The defence to plaintiff' s suit for partition, which was brought in March, 1939, was a denial of the plaintiff's title and also adverse possession.

(2.) THE trial Court found that plaintiff's title was proved and that adverse possession was not proved and made a decree declaring the plaintiffs right to an undivided half share in the land together with the structures erected thereon and directing the Collector to make a partition. In view of the fact that the defendants had erected the structures and spent money on improving the land, the plaintiff was not allowed any account of the income, but the property was ordered to be divided as it stood at the date of the suit without compensation to the defendants for the improvements.

(3.) IT is common ground that the plaintiff has never had possession. Why he bought the land is not clear and he does not seem to know himself. He lived in Bombay and had a hotel at Apollo Bunder until he sold it in 1926. For ten years after that he says he was busy with litigation in the High Court. He went for a picnic on the land in 1912 or 1913 with his uncle Dr. Nanji and that was the only time he went near it until shortly before the suit. He says he used to send his mali to look at the land every now and again, but he has not examined the mali as a witness. He admits that he never received any share of the income from Dr. Nanji or Soonabai or Manekji. On one occasion he says defendant No.2 sent him Rs. 32 for his share of the income. But his evidence about this is very unconvincing and it is pretty clear that he has never had anything from the defendants either. The plaintiff can hardly have forgotten the fact that he owned this land, but apparently he thought it was not worth bothering about and left it, along with Survey No.113, to be looked after by his relations, the defendants and their predecessors.