MADHAO PANDURANG Vs. YESHWANT

JUDGEMENT

(1.) THIS is a second appeal filed by the original plantiffs against the judgment of the Second Extra Assistant Judge, Nagpur, in Civil Appeal No. 55 of 1963 dated 19-2-1964, allowing the appeal filed by the original defendant and dismissing the suit filed by the plaintiffs.

(2.) THE plaintiffs filed a suit for possession of the suit house on the basis of title and also for recovery of Rs. 540/- on account of mesne profits for use and occupation of the said house by the defendant. It was contended by the plaintiff that the house bearing number 1326/0-3 situated in Circule No. 21, Balaji Mandir Road, Itwari, Nagpur, originally belonged to one Narayan Paikaji Gurao of Nagpur. After his death it was inherited by his wife Gaurabai. She sold this house to one Mannulal in the year 1925. Since then Mannulal continued to be in possession of the said house in his own right and got the same constructed at his own costs in the year 1936. As it was thought necessary that Maina, sister of Narayan, should also give her consent to the said transfer such a consent deed was obtained on the 4th October, 1925 by which she purported to give up her right in respect of the property. Mannulal contined in possession till 20-11-1958 on which date he shold the suit house to the present plaintiffs. As that time the defendant was in possession of the suit house either with the consent of Gaurarabi or as her tenant. The plaintiffs after the purchase of the house filed an application before the Rent Controller for permission to terminate the tenancy of the defendant. After getting the necessary permission, the plaintiffs filed a suit in the Court of the Civil Judge, Senior Division, which was registered as Civil Suit No. 1014-A of 1959. This suit was dismissed on 25-6-1960. The question as to whether the defendant was a tenant of Mannulal or otherwise was the subject-matter of the decision of that suit. In that suit it was held that the plea of tenancy was not established. An appeal filed against the said decision of the Civil Judge, bearing Civil Appeal No. 128-A of 1960, was also dismissed. After the decision in that appeal the present suit was filed by the plaintiffs on the basis of their title, on 7th December, 1961. In the present suit the plaintiffs have contended that the defendant was in possession even before his vendor's sale-deed of the year 1925 and at any rate from 1942. It was thereafter contended that the defendant had paid the rent to Mannulal upto the end of June 1958 and also for July, 1958. A reference was also made to a declaration given by the defendant to the Nagpur Municipal Corporation to the effect that the he was the tenant of the house and this declaration was given on 27-4-1952.

(3.) THE defendant denied the title of the plaintiffs. He contended that there was no relationship of the landlords and tenant between the plaintiffs and himself. Though the defence of limitation was not taken in specific terms, it was stated that the defendant and his father have been continuously in possession of the premises since before 25 years of the date of the suit. In effect, therefore, right on the basils of adverse possession was claimed. This was also construed to be a plea on the ground of limitation.