GANPAT JANU WAGH Vs. VANMALA

JUDGEMENT

(1.) This appeal challenges the judgment and order dated 8th September 1998 delivered by the Additional District Judge, Khamgaon in Regular Civil Appeal No. 47 of 1990 confirming the judgment and order dated 30th July 1990 passed by the Civil Judge, JD, Jalgaon (Jamod), District Buldana in Regular Civil Suit No. 50 of 1981 whereby suit of the plaintiffs (present respondents no. 1 and 2) was decreed. In that, original defendants no. 1 and 2 were directed to deliver possession of suit property i.e. Gat No. 5/6, area 1.21 HR situated at village Khamkhed, residential house situated in Ward No. 10, Jalgaon (Jamod) described in plaint paragraph 3 to the plaintiff. It was the grievance of the plaintiffs Vanmala and Sunanda that 1st defendant i..e Ganpat Janu without any right, title or interest, sold gat no. 5/6 situated at Khamkhed, Tahsil Jalgaon Jamod, District Buldana to Vasant Sakharam (original defendant no.2) vide sale deed dated 23.2.1981 for a sum of Rs. 6500/. Contention of the plaintiffs was that they had immediately by notice dated 27.2.1981 (exhibit 31) had called upon defendants to restore possession of the suit land to the plaintiffs, but their notice remained unheeded. Thus, they had to file suit for possession on the ground that the suit land referred to above was exclusively owned and possessed by their grandfather pursuant to sale deed executed in favour of Janabai wife of Vitthal Wagh for a sum of Rs. 750/ (exhibit 32). Thus, according to plaintiffs, owner of the suit land was Janabai (their grandmother) under the registered sale deed and land was in possession of their grandfather Vitthal Janu Wagh. Mother of the plaintiffs by name Narmada d/o Vitthal Wagh had predeceased Vitthal Janu Wagh in the year 1971 while Vitthal died in the year 1978 as owner of suit land which was inherited from him by plaintiffs as only legal heirs of deceased Vitthal. Contention on behalf of 1st defendant Ganpat Janu Wagh was that suit land was ancestral and not selfacquired by Vitthal or Janabai. Defendant No.1 claimed that as exclusive owner of the suit land, he sold it to Vasant Sakharam under sale deed dated 23.2.1981. However, this document referred to by defendant no. 1 is not supported in evidence. In the alternative, it was claimed by defendant no.1 that plaintiffs had only 1/4th share if they proved their title. In second alternative, defendant no. 1 claimed that he was owner of suit property by adverse possession and was entitled to sell it to Vasant Sakharam as owner.

(2.) The pleadings were examined by the trial Court and the trial Court found in favour of the plaintiffs Vanmala and Sundanda that they are entitled to possession of the suit land as legal heirs of Vitthal who was exclusive owner of the suit land. Thus, the trial Court disbelieved the case of defendant no. 1 that the suit land was ancestral property or that he was exclusively entitled to dispose of the same. The trial Court found that there was original sale deed of the suit land at exhibit 32 which indicated that suit land was purchased by Janabai Vitthal Wagh for a sum of Rs. 750/ on 2 nd February 1955. The documentary evidence produced by the plaintiffs also consisted mutation extract (exhibit 30) in the name of Janabai dated 20th January 1956 to prove that she was absolute owner of the suit land. The legal position that she became absolute owner of the suit land in view of Section 14 (1) of the Hindu Succession Act was also considered by the learned trial Judge. Thus, after Janabai's death, original and exclusive owner of the suit land, the suit land was mutated in the name of Vitthal Janu Wagh as legal heir of Janabai. Thus, it was Vitthal Janu Wagh who inherited from Janabai in view of Section 15 (a) of the Hindu Succession Act. He remained in possession of suit land till he died in 1978 and thus, plaintiffs as legal heirs succeeded to the property (suit land) left by Vitthal. Considering the fact that Narmada daughter of Vitthal had predeceased Vithal in the year 1971 leaving plaintiffs Vanmala and Sunanda as only legal heirs to inherit the suit land. Trial Court also considered crop statement (exhibit 34) indicating possession of Vitthal. Regarding the residential house situated at Plot No. 32 vide Sheet No. 131 in Ward No. 10 of Jalgaon Jamod, learned trial Judge considered the evidence that Nazul extract (exhibit 33) in respect of residential house indicated that plot no. 32 was partitioned in three equal shares amongst Vitthal, Ganpat (defendant no.1) and Rajaram (3rd brother of Vitthal and Ganpat) on the strength of oral partition occurred in the year 1947. On the basis of extract of Nazul record, trial Court recorded a finding that ancestral house was partitioned in the year 1947 and 1/3rd share thereof was held by Vitthal who was owner and was in possession of suit house.

(3.) Learned Advocate for the appellant contended that in view of exhibit 33 house property mentioned in the Record of Right was shown in the name of three brothers Vithal, Rajaram and Ganpat. According to him, all heirs were not joined in the suit. However, considering the documents as it is, the document itself indicated clearly that there was oral partition between brothers Vithoba, Rajaram and Ganpat and accordingly, mutation entries were made. The trial Court held that Vithal at the time of his death in 1978 was in possession of suit house to the extent of 1/3rd share. That being so, plaintiffs being classI heirs of Vithal Janu Wagh were entitled as owner and possessor of suit house to the extent of 1/3rd share which was already partitioned and was in possession of Vithal pursuant to the partition in the year 1947. Plaintiffs were thus claiming ownership and possession of suit property which was inherited by them from their grand father Vithal. The relief in the suit was thus for possession from defendants who were claiming right in respect of suit property.