CHAMPAT GANPATRAO GANJRE Vs. MAHADEO BHAGWAN UMAK

JUDGEMENT

(1.) THIS is an appeal by the appellant-original defendant No. 2 in Regular Civil Suit No. 365 of 1979 against the judgment and decree dated 24th December, 1986 passed in the said suit by Joint Civil Judge (Junior Dn.), Wardha being confirmed by the 3rd Additional District Judge, Wardha vide judgment and decree dated 7th February, 1990 in Regular Civil Appeal No. 29 of 1987.

(2.) RESPONDENT No. 1 Mahadeo Bhagwan and respondent No. 2 Krishna Bhagwan, who are real brothers, have filed the aforesaid suit for declaration, injunction and possession of the suit property mentioned as open plot with plinth over it on the averments in the plaint as follows: their father namely Bhagwan, admittedly, owned the suit property and after his death, on 9-2-1965, the plaintiffs succeeded to his estate. The said property was in possession of plaintiff No. 1. The suit plot was used by the plaintiffs for storing sundry materials and there was a temporary structure on it which was constructed from time to time. The house and the plot on which there is a construction of plinth are shown in the name of plaintiffs in assessment of tax.

(3.) IT is the case of the plaintiffs that the original defendant No. 1 Wardhu Nagorao Patil was a money lender and there was some money lending transaction between their father and defendant No. 1 prior to 1995 and plaintiffs father had given writing to defendant No. 1 and it was as a security for the loan. However, original defendant No. 1, for the first time, tried to assert his right over the plinth in the month of November, 1979 with an intention to take forcible possession. Therefore, original plaintiff No. 1 had lodged report with the police. Original defendant No. 1, by taking undue advantage of the writing, got his name recorded against the suit plot in the Gram Panchayat record without any notice to the original plaintiffs. He also executed one sale deed in favour of original defendant No. 2 i. e. present appellant on 14-11-1979. The appellant also lodged report against plaintiffs on 21st November, 1979 alleging that plaintiffs constructed a structure over the suit plot. The police seized the standing structure on the suit plot which consisted of wooden poles and tin sheets. Original plaintiff No. 1 was prosecuted. The appellant, therefore, tried to obstruct plaintiffs possession over the suit plot which was continuous, open and adverse to the knowledge of appellant as well as deceased-defendant No. 1. It was, for the first time, that the appellant and original defendant No. 1 asserted their rights since 1950, though there was a writing in their favour. Plaintiffs were in possession of the suit plot since the last 28 years and they have acquired title by adverse possession. However, the appellant took forcible possession of the suit plot on 26-3-1980 after the application for temporary injunction filed by the plaintiffs was rejected on 7th March, 1980. The plaintiffs, therefore, claimed declaration that they have become owners of the plot by adverse possession and also for possession of the suit plot as plaintiffs were dispossessed during pendency of the suit. Plaintiffs also sought further relief of permanent injunction against the defendants.