VITHIBAI SOMARYA PATIL Vs. HARI DAMU PATIL SINCE

JUDGEMENT

(1.) THIS second appeal is preferred against the judgment and decree dated 19-11-1992 passed by II Additional District Judge, Thane, in Civil Appeal No.134 of 1991, whereby the lower appellate Court reversed the judgment and decree dated 30-3-1991 passed by Civil Judge, Junior Division, Palghar, in Civil Suit No.50 of 1978. The aforesaid judgment and decree of the lower appellate Court is the subject-matter of challenge before me in this second appeal.

(2.) APPELLANT in this case is the original plaintiff, who filed a suit being Civil Suit No.50 of 1978 before Civil Judge, Junior Division, Palghar, for a declaration that she is the owner of the suit property. It was contended on behalf of the original plaintiff that her father was residing at village Tambode and her father was the owner of the land bearing Survey No.131 - House No.1/3 and 75/9. The plaintiff contended that, though her father had properties, he was residing separately from his brother. According to the plaintiff, her father had 1/2 share in the house bearing Grampanchayat House No.159. Plaintiff's father died somewhere in the year 1928 and after his death, her uncle i.e. father of the present defendant was looking after Plaintiff's property as guardian of the plaintiff. Thereafter, plaintiff got married and started residing at her matrimonial house at different places. However, she used to visit her uncle, who was looking after her father's property. According to plaintiff, somewhere in the year 1943, the defendant, after the death of the father of the defendant approached the Talathi of the village, behind the back of the plaintiff, and got his name entered in the record of rights in place of the plaintiff's name. Somewhere in the year 1976, plaintiff, for the first time, demanded her share in the residential house and the land. However, the defendant refused to give to her, her share in the residential house and the land, which were inherited by her from her father. Plaintiff, therefore, approached the Office of Talathi, where she found that by practising fraud, her name had been deleted from the record of rights somewhere in the year 1943 and the said fraud had been practised at the instance of the defendant. Plaintiff, therefore, filed the present suit.

(3.) ADMITTEDLY, in this case, after the death of the father of the plaintiff, somewhere in the year 1928, father of defendant No.1 viz. Dadu Patil was looking after the plaintiff and her property as her guardian, when the plaintiff was only of four years of age. It appears that on or about 24-12-1941 Dadu Patil expired. After the death of Dadu Patil, father of present defendant, approached the Talathi and got his name entered and the name of the present plaintiff deleted from the record of rights. It is pertinent to note that the aforesaid change in the record of rights was made without notice to the present plaintiff. In the record of rights which is at Exhibit 26, at Entry No.421 dated 28-3-1943, the aforesaid change has been effected. In the said entry, it has been mentioned that plaintiff's guardian Dadu Abba Patil i.e. father of the present defendant died leaving behind the present defendant as his heir. It is also mentioned in the said entry that plaintiff had got married in the other caste and, therefore, defendant's name may be entered in the place of the name of his father Dadu Abba Patil. According to me, even on a plain reading of the aforesaid mutation entry, it would appear that defendant's name was entered in the record of rights in the place of his father Dadu Abba Patil, who was the guardian of the plaintiff. This being the position, according to me, on the basis of this entry, the defendant is not claiming ownership of the land in his individual capacity but as the guardian of the plaintiff. Surprisingly, the lower appellate Court, relying on the aforesaid entry, held that from 28-3-1943 defendant has started claiming adverse possession and since the suit was filed by the present plaintiff somewhere in the year 1978, defendant has perfected his title by adverse possession. According to me, the said finding of the lower appellate Court is liable to be set aside on the aforesaid reasoning itself. The lower appellate Court also lost sight of the fact that, if on the basis of the entry, defendant was claiming the suit property as guardian of plaintiff, then, his possession with reference to the suit property was that of a trustee and in such a situation, defendant can never claim adverse possession in respect of the suit property. As regards the house property, admittedly, the father of the plaintiff has one-half share in the house property. The lower appellate Court lost sight of a well-settled principle that "mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession," Indeed even if this fact be admitted, then the legal position would be that the co-sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees." (see para 7 of the case law : Karbalai Begum v. Mohd. Sayeed, AIR 1981 Supreme Court, Page 77).