TARABAI DATTATRAYA GUJRATHI Vs. RANGNATH VISHWANATH GUJARATHI

JUDGEMENT

(1.) THIS appeal is by the original defendants against the judgment and order dated 10th March, 1983 passed by the II Extra Assistant Judge, Nasik, in Civil Appeal No. 339 of 1980, confirming the judgment and decree dated 29th July, 1980 passed by the learned Civil Judge, Junior Division, Sinnar, in Regular Civil Suit No. 60 of 1972.

(2.) THE plaintiff filed the suit for possession of the suit property, being Municipal House No. 548 situated at Kasbe-Sinnar, Taluka Sinnar, District - Nasik, which house is on the record of City Survey, being C. S. Nos. 1306 and 1307, and for mesne profits from the defendants. The trial Court decreed the suit by its judgment and decree dated 29th July, 1980. In appeal filed against the aforesaid judgment and decree by the defendants, the appellate Court by its judgment and order dated 10th March, 1983 confirmed the trial Courts decree and dismissed the appeal. Hence this appeal.

(3.) AS a very important question of law is raised in this second appeal on behalf of the appellants, a few facts are required to be stated. Municipal House No. 548 standing on C. S. Nos. 1306 and 1307 situated at Kasbe-Sinnar, Taluka Sinnar, District Nasik, was by Pandharinath Raghunath Gujarathi as his self-acquired property. Pandharinath had 3 sons viz. , Harisha, Vishvanath and Narayan, out of whom eldest son Harisha died before Pandhrinaths death, leaving behind him his widow Saraswatibai, and daughter Tarabai. The property being a self-acquired property of Pandharinath, he gave the property to his two sons Vishwanath and Narayan by executing a will (Vyavasthapatra) dated 26th March, 1935. A partition of this property took place between Vishwanath and Narayan on 30th December, 1943. In the partition, Vishwanath, the father of the plaintiff, received the suit property towards his share. Saraswatibai, widow of Harisha, filed a suit, being Regular Civil Suit No. 75 of 1937, against Vishwanath and Narayan for maintenance and in that suit a decree in the nature of an award was passed. Under the decree, Saraswatibai received maintenance of Rs. 13/- per month and Rs. 2,000/- in cash. Further, under the said decree, there was an agreement to provide accommodation to Saraswatibai for her residence during her life time. It was, however, clarified in the decree that Saraswatibai will not have any ownership right over the said residential accommodation. In pursuance of the said decree, two khans from the eastern portion of the house of Vishwanath were given to Saraswatibai. Saraswatibai died on 22nd March, 1959. After her demise, the present appellant No. 1 defendant Tarabai, the daughter of Saraswatibai, occupied these premises and was staying there. It is alleged that Saraswatibai and her daughter Tarabai were licensees of the suit property and they have no ownership rights under the decree. It is alleged that during the life time of Vishwanath, a partition took place between the two sons Vishwanath including the present respondent plaintiff on 15th April, 1969, in which partition the suit property consisting of 2 rooms was alleged to have been allotted to the present respondent-plaintiff and thus it is alleged that he became the owner of the suit property. By registered notice dated 8th November, 1971 the plaintiff called upon the defendants to deliver possession of the suit property. As there was no reply to the said notice from the defendants, the plaintiff filed the suit for possession of the suit property. The defendants filed their written statement and denied all the allegations made in the plaint.