GANPAT ABAJI BHOSALE Vs. SONUBAI GUNDOPANT NIKAM

JUDGEMENT

(1.) THE appellants in this case are the heirs of the original plaintiff who filed the suit simplicitor for grant of injunction. THE suit property consists of house having old Municipal No.862 within the limits of Grampanchayat at Shirol, Dist. Kolhapur. It is the case of the plaintiff that the suit property was gifted to him by his father-in-law Krishnarao by a registered gift deed dated 3rd July 1940. Since the date of the said gift deed the plaintiff is in possession of the suit property. THE plaintiff contended that Sonubai Gundopant Nikam, respondent no.1 - original defendant no.1, is the sister-in-law of the present original plaintiff. She filed Reg. Civil Suit No.74 of 1970 against respondents nos. 2 to 8 i.e. original defendants nos. 2 to 8 for partition and separate possession of her share in the suit property left by Krishnarao her father. Admittedly in the said suit the present plaintiff was not a party. In the aforesaid suit decree was passed in favour of defendant no.1 whereby she was given 1/3 share in the property belonging to Krishnarao her father. In the execution of the aforesaid decree when Commissioner visited the property to take measurements, the present plaintiff apprehended that his possession will be in jeopardy and, therefore, he filed the present suit being Reg. Civil Suit No.110 of 1976 in the Court of the Civil Judge, Junior Division, Jaysingpur, simplicitor for grant of injunction restraining defendant no.1 from interfering with the possession of the plaintiff. It is the case of the plaintiff that his father-in-law gifted the suit property by a gift deed which is at Exh. 36, on 3rd July 1940 and since 1940 he is in possession of the suit property. In the suit filed by defendant no.1 his sister-in-law for partition he was not made party by defendant no.1 and, therefore, it is contended by the present plaintiff that since he is not claiming the suit property either from defendant no.1 or any of the parties in the said suit Reg. Civil Suit No.74 of 1970 filed by defendant no.1 he cannot be dispossessed in the execution of the decree obtained by defendant no.1 It was contended by the present plaintiff that he is in possession of the property since 1940 as the owner and defendant no.1 cannot dispossess the present plaintiff by executing the decree in Reg. Civil Suit No.74 of 1970.

(2.) ON the other hand, defendant no.1 contended that in Reg.C.Suit No.74 of 1970 filed by her defendant nos.2 to 5 sons of the plaintiff were joined as parties and, therefore, the present plaintiff had knowledge about the said suit and in view of this, it was contended that the present plaintiff is estopped from challenging the decree passed in R.C.Suit No.74 of 1970. Defendant no.1 also contended that though her father executed the gift deed dated 3rd July 1940, still the same was never given effect to and her father continued to stay in the suit premises.

(3.) SHRI Godbole appearing with SHRI Hombalkar, learned Counsel on behalf of the appellants, contended that the Judgment and decree passed by the lower Appellate Court is liable to be set aside mainly on two grounds i.e. the lower Appellate Court has taken into consideration irrelevant documents and secondly, the lower Appellate Court failed to take into consideration voluminous evidence which will go to show that the plaintiff was in lawful possession of the suit property.