MAHADU LAXMAN Vs. HANAMATI SAKHARAM

JUDGEMENT

(1.) THE third plaintiff Chandulal Chunilal who was a member of a joint Hindu family consisting of himself and his father sold S. Nos. 115, 35/1a and 85/2 of the village of Borwali, Taluka Mangaon, to plaintiffs 1 and 2 by a deed dated 3-3-1944. Plaintiff 3 sold the property as if he was absolute owner thereof. Thereafter the three plaintiffs filed suit No. 158 of 1945 in the Court of the Civil Judge, Junior Division, at Roha, against the defendant who was originally a tenant of the joint family of plaintiff 3 alleging that the tenancy of the defendant was terminated by a proper notice to quit and the defendant had failed and neglected to vacate and deliver possession of the property when demanded.

(2.) THE defendant by his written statement denied the plaintiff's ownership of the suit lands. He contended that the lands did not belong to the plaintiffs. He further contended that some of the suit lands belonged to the defendant as ancestral lands and the other lands were purchased by him in the year 1934. He also contended that Survey No. 115 was Khoti land, and the plaintiffs were not entitled to claim ownership in respect of it in view of the provisions of the Khoti Abolition Act. The defendant then contended that he was a protected tenant in respect of Survey No. 115, and the suit being one for possession by a landlord against his tenant was not maintainable. Inconsistently with those allegations the defendant contended that the plaintiffs were not in possession of the suit lands within 12 years before the date of the suit and the suit was not in time. He also contended by an amendment to the written statement that the notice served by the plaintiffs was not according to law, and the Court had no jurisdiction to grant possession of the suit lands.

(3.) THE learned trial Judge held that the plaintiffs had title to the suit lands, and that they were in possession within 12 years before the date of the suit; that the suit filed by the plaintiffs was in time; that the requisite notice was served upon the defendant, and that it was according to law; that the Civil Court was competent to pass a decree for possession to the plaintiffs; that the suit was not barred by the Khoti Abolition Act, and that the plaintiffs were entitled to mesne profits. The learned trial Judge accordingly passed a decree in favour of the plaintiffs 1 and 2 for possession of the suit properties together with mesne profits amounting to Rs. 110/- and directed ascertainment of future mesne profits under Order 20, Rule 12 (c), Civil P. C.