BALKRISHNA Vs. PRAKASH

JUDGEMENT

(1.) This appeal is preferred against the judgment and decree passed on 15.11.1995 by the 4th Additional District Judge, Nagpur, in Regular Civil Appeal No. 21 of 1992, thereby reversing the judgment and decree passed on 20.11.1991 in Special Civil Suit No. 161 of 1985 by the 7 th Joint Civil Judge, Sr.Dn., Nagpur.

(2.) The appellants are the original defendants and the respondents are the original plaintiffs. For the sake of convenience, they are being hereinafter referred to as plaintiffs and defendants in the order in which they were arrayed as parties to the suit). The facts of the case are stated briefly in the subsequent paragraphs.

(3.) Plaintiffs no. 1 to 3 (respondents 1 to 3) and plaintiff no.4 (respondent no. 4) were respectively the sons and daughter of late Sheshrao Bhagwan Lohi, the brother of original defendant no.1 (original appellant no.1) deceased Balkrishna Lohi. Sheshrao and Balkrishna had one more brother named Narayan. The ancestral properties which had come into the hands of the brothers were amicably partitioned by them on 5.4.1951. In this partition, the house No. 100, new House No. 121, comprising a building of six Mayalis (rafters), five Tasmas (rooms) situated in Ward No. 24, Peth Budhwar, Katol, District Nagpur, more particularly described in the Schedule to the plaint (hereinafter referred to as suit house), came to be allotted to Sheshrao, father of the plaintiffs, while the other properties were allotted to Balkrushna and Narayan. After the partition, father of the plaintiffs became the exclusive owners of the suit house and he continued to be in its undisturbed and peaceful possession till his death on 21.11.1984. After his death, plaintiffs being the legal heirs of deceased Sheshrao became the absolute owners of the suit house. It was submitted on behalf of the plaintiffs that when they were busy performing the last rites of deceased Sheshrao, on or about 23.11.1984, defendant no.1 Balkrishna forcibly obtained possession of the suit house. Therefore, notice was issued to him for vacating of the suit house, but in vain. Ultimately, the appellant filed a suit for recovery of possession and mesne profits.