HARI JENA SATICHA Vs. DEVJI KRISHNA SATICHA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed by the Bombay City Civil Court on 12-8 1975 the appellants are the heirs and legal representatives of the original defendant. The Respondent Nos. 1 (i) to 1 (7) are brought on record as heirs and legal representatives of Respondent No. 1 (original plaintiff no. 1 ). Respondent No. 2 is the original Plaintiff No. 2. It is unfortunate that despite the respondents having been served and Mr. Bhandare also having informed them about the appeal being on board, the respondents have not chosen to appear. Hence, I had no benefit of any submissions made on their behalf. In the circumstances as the appeal is an old appeal and as the suit was instituted in the year, 1964 I do not see any good reason to adjourn the same awaiting the appearance of the respondents at their choice and have proceeded to hear Mr. Bhandare the learned Counsel for the appellants. The respondents will hereafter be referred to as the Dlain tiffs and the appellants as the defendants for the sake of convenience.

(2.) THE respondents/plaintiffs filed the suit on 23-11-1964 inter alia for a declaration that they jointly have an one-haif share -in the land at gaothan Versova, Andheri, Bombay admeasuring about 15 sqare yards shown on plan, Ex. A to the plaint. They prayed for Partition between themselves and defendants and for ascertainment of the land coming to the share of the plaintiffs and for recovery of vacant possession in respect of such area. Lastly, they prayed for compensation at the suit rate of Rs. 42/- upto the date of the suit and future mense profits at the rate of 25 paise per day. Their case was that they and the original defendants constituted a joint hindu family. A division of the residential house in two parts was already effected. However, the open land in front of the house had been kept in common and was in joint enjoyment and occupation of the parties. That space admeasures about 15 sqare yards. They have been using it for spreading their nets for repairs and for drying fish and fish nets. According to the plaintiffs in the City Survey record both the parties have been shown as joint holders However, as the defendants prevented them from using the land, the suit was filed.

(3.) THE original Defendant No 1 resisted the suit. He contended in the written statement that the suit space of land exclusively belonged and was in exclusive use of the defendants since the time of their grand-father. He denied that the suit land was jointly held by the plaintiffs and defendants. He, therefore, prayed that the suit may be dismissed. No written statement was filed by original Defendant No. 2 or his heirs after his death.