CHANDRABHAGA GANPATI KIRVE TELI Vs. KANTILAL DHARSIBHAI DESAI

JUDGEMENT

(1.) This Second Appeal arises from the Judgment and Order dated 3-7-1984 passed by the learned Civil Judge, Junior Division at karmala in Solapur District in Regular Civil Suit No. 222 of 1975. The learned judge was pleased to decree the suit for possession and mesne profits in respect of the suit house No. 440 under Municipal Council, Karmala and a plot of land admeasuring 40 x 20 ft. This decree came to be confirmed by the learned additional District Judge at Solapur vide his Judgment and Order dated 28-2- 1990 in Civil Appeal No. 558 of 1984. The substantial questions of law framed while admitting this appeal are as under :- (a) Whether both the Courts below have committed an error by misconstruing the alleged Sale Deed which was not specifically pleaded in the Plaint by the plaintiffs (b) Whether both the Courts below have committed an error by treating the Mortgage Deed in respect of the suit property, whereas actually the same was in respect of some other property

(2.) The appellants were impleaded as defendants in R. C. S. No. 222 of 1975 filed by the present respondents-plaintiffs. As per the plaintiffs the suit property was handed over to their father Shri Dharsibhai son of Jivan Desai by Shri eknath Savlaram Kirve Teli vide Mortgage Deed dated 17-10-1942 (Exh. 153) and Dharsibhai's name came to be entered as the owner of the property in the year 1958 by the Municipal Council. On the demise of Dharsibhai, the suit property was kept as a joint family property in the name of all the plaintiffs and for some reasons they had to be away from Karmala for few years. As per the plaintiffs on or about 12-11-1974 when they entered the suit property they saw that the defendants had forcibly acquired possession of the suit property and erected a temporary shed admeasuring 40 x 8 ft, and on their request to remove the shed and also vacate the suit property, the defendants claimed that the suit property was their ancestral property. The plaintiffs issued a legal notice dated 27-12-1974 (Exh. 65) calling upon the defendants to remove their encroachment from the suit property. The defendants replied the said notice on 3-4-1975 (Exh. 66) and they claimed that the suit house property was their ancestral property and they were not encroachers. They also claimed that they were in possession of the suit property for more than 50 years and it was the property of a joint Hindu family. The plaintiffs, therefore, approached the Court for seeking possession of the suit house property and also the mesne profits. The defendant No. 1 filed his Written Statement at Exh. 17, whereas the defendant No. 2 filed his written Statement at Exh. 18. The defendant No. 1 claimed to be son of Rama kirve and the brother of Vithal Kirve, whereas the defendant No. 2 is the son of ganpat Kirve, the defendant No. 1. On the demise of the defendant No. 1, his four sons, four daughters and widow were brought on record as the defendants. In the written Statement while the defendants reiterated that the suit house was their ancestral property and they were in possession of the same for more than 50 years, they claimed to be LRs of Eknath Savlaram who had handed over the suit property to the plaintiffs' late father vide the Mortgage Deed at Exh. 153. This plea of succession was not, however, taken up in the reply Exh. 66 to the legal notice issued by the plaintiffs. On behalf of the plaintiffs, plaintiff No. 1 Kantilal (P. W. I) , ghanashyam Gandhi (P. W. 2) , Vallabhadas Desai (P. W. 3) , Vithal S/o Kisan Veer (P. W. 4) , Hiraman Savlaram Nirmal (P. W. 5) and Dattatraya Vinayak Pandit (P. W. 6) came to be examined. On the other hand, Chandrabhaga Kirve (D. W. I) , chandkhan Pathan (D. W. 2) were the only witnesses examined on behalf of the defendants. The learned Judge of the trial Court considered the oral and documentary evidence brought on record by the respective parties and held that the plaintiffs had proved their title to the suit property, the plaintiffs proved that on 12-11-1974 they were dispossessed unlawfully from the suit property by the defendants and the defendant No. 1 refused to deliver the possession of the suit property to the plaintiffs on 3-4-1975. On a specific issue framed, the trial Court held that the defendants failed to prove that they were in possession of the suit property continuously, openly and peacefully for more than 20 years and, therefore, the plaintiffs were entitled to the possession of the suit property. In the appeal the Lower Appellate Court, on assessment of the evidence available on the record, held that the plaintiffs had proved their title to the suit property and that they were forcibly dispossessed by the defendants from the same in the year 1974 and, therefore, the decree passed by the trial Court for possession was confirmed.

(3.) Mr. Kudle the learned counsel for the defendants submitted that the mortgage Deed at Exh. 153 was not a sale transaction, the plaintiffs failed to prove their title to the suit property, the possession allegedly given to the plaintiffs' father was not proved and in any case it being a joint family property, possession given by any one family member would not be binding on the other members of the family. The learned counsel also submitted that the defendants had even otherwise raised a plea of ownership by adverse possession and the trial court failed to frame and decide such an issue specifically. As Mr. Kudle the learned counsel for the defendants the suit was required to be remanded for fresh trial on the issue of ownership by adverse possession. He also pointed out that the suit property was claimed to be house No. 440, while the property covered by the mortgage Deed at Exh. 153 was ostensibly house No. 398 and this would go to show that the plaintiffs did not have a valid title in law to the house No. 440 and on this ground alone the suit was required to be dismissed.