SATYABHAMABAI Vs. CHHATRAPATI S O ZIBAL DHANJODE

JUDGEMENT

(1.) THIS Second Appeal is filed by the Original Defendants who are challenging the Judgment and Decree passed by the 8th Additional District judge, Nagpur in Civil Appeal No. 484/84 arising out of the Judgment and decree passed on 31. 3. 1984 by the 4th Joint Civil Judge, Jr. Dn. , Nagpur, who had dismissed the Civil Suit No. 1561/80 filed by the plaintiffs.

(2.) THE brief facts are as under : one Jagoba Dhanjode was the paternal grandfather of the plaintiffs and the defendants. This Jagoba Dhanjode was the owner of House No. 216 situated in Ward No. 20 and his name was recorded in the Corporation record. He had two sons viz. Zibal and Wasudeo. They were residing alongwith their father in the said House. Jagoba died in the year 1947. Jagoba had a brother viz. Nagobaji who had a separate house in his exclusive possession. After the death of Nagobaji who died issueless, his wife Gangubai inherited the house and become the owner of the House and on 11. 11. 944 this Gangubai bequeathed her house under a registered giftdeed in favour of the plaintiffs father Zibal and he accepted that house and thereafter Zibal went to reside in that house. It is the case of the plaintiffs that because there was a quarrel in the family, Jagobaji asked his other son zibal to shift to his house which was gifted to him. While leaving the house, it is submitted by the plaintiffs that Zibal did not surrender his right from house No. 216. The plaintiffs came to know that in the Corporation Record, the name of Jagoba was found on 29. 9. 1980 and, therefore, a notice was issued to the defendants asking them to give share in the house and on refusal by the defendants, the plaintiffs filed the present suit for partition and separate possession. The appellants/defendants filed their Written statement and contended that Zibal was residing separately and that he had surrendered his rights in the said house after he shifted to the house which was gifted to him. It was further contended that the plaintiffs had brought the suit for partial partijion and, therefore, the said suit was not maintainable. It is further averred that the defendants have became the owner of the suit house by way of adverse possession and, therefore, the suit was liable to be dismissed. The Trial Court dismissed the suit of the plaintiffs on the ground that the other joint family properties were not included in the schedule and, therefore, the present suit was a suit for partial partition and, therefore, it was not tenable and, therefore, the suit was dismissed.

(3.) THE plaintiffs preferred an appeal. The Appellate Court set aside the judgment and Order of the Trial Court and held that the defendants had not proved adverse possession. The Appellate Court further held that since the defendants had not entered into the witness box and had not led any evidence, merely because the defendants had remained in uninterrupted and continuous possession of the suit house that would not be sufficient for proving adverse possession against the owner unless and until the ouster of the plaintiffs was proved to their knowledge and, therefore, the appellate Court set aside the findings of the Trial Court that the defendants had established their title to the suit house exclusively by adverse possession. The Appellate Court further held that there was no pleadings in the written Statement about partial partition and further no evidence was led by the defendants to bring on record any material to show that besides the house there was any other ancestral joint family property owned by the plaintiffs and the defendants.