APPA BABAJI MISAL PATIL Vs. DAGDU CHANDRU MISAL

JUDGEMENT

(1.) THESE two appeals raise an interesting question of Hindu Law relating to succession of property inherited by a woman prior to Hindu Succession Act, 1956. It is necessary to set out the relevant facts to appreciate the question involved in these two appeals. The land bearing survey No. 114 of Village Chinke in Sangola Taluka of Solapur District admeasures 28 acres and 33 gunthas. The land originally belonged to one Sukhdeo who was a common ancestor. The geneology of Sukhdeo is as under:-Sukhdeo had three sons Balu, Yesu and Sheshappa. Yesu died of young age and his branch was extinct. Balu had two sons, Shahaji and Ijappa. Ijappa's son is Chandru and Chandru's son is plaintiff. Sheshappa had two sons, Pandu and Daji and Daji had two children, Bajrang and Kasabai. Krishnabai, a widow of Daji died in the year 1940. Dagadu, original plaintiff, claims that a partition was effected between Ijappa, Shahaji and Sheshappa prior to year 1912 and land allotted to the share of Sheshappa bears survey No. 114/1 while the land allotted to the branch of Balu bearing survey No. 114/2. In the year 1928, falni measurements were carried out and land bearing survey No. 114/2 admeasuring 18 acres and 39 gunthas and land bearing survey No. 114/1 admeasuring 3 acres and 33 gunthas were shown in the names of Aba and Dagadu and Kasabai respectively. The mutation entries were then effected accordingly and the name of Kasabai was entered in the revenue record as owner of the land in dispute.

(2.) AFTER the death of Sheshappa in the year 1912, his son Daji died in the year 1914 leaving behind his widow Krishnabai, son Bajrang and daughter Kasabai. The property which had fallen to the share of Sheshappa was inherited by Daji and after his death by Bajrang. After the death of Bajrang, the property was held by his mother Krishnabai and after the death of Krishnabai, by Bajrang's sister Kasabai. On 18/12/1942 Kasabai sold 5 acres and 9 gunthas of land to Lochanabai by registered sale-deed. Lochanabai is mother of defendants Nos. 1 and 2 and to this document, the plaintiff is the attesting witness. Mutation entry was effected in the year 1942. Entry in the property card was made in the name of Lochanabai after notice of change was served on plaintiff. On 6/05/1969 defendant No. 1 sold 1/6th share of the land in dispute to defendant No. 3 while on 29/05/1969 defendant No. 2 sold 1/4th share to one Pitambare. These two sale-deeds were challenged by plaintiff by filing two suits on 10/04/1970. The plaintiff claimed that defendant Nos. 1 and 2 had no right, title and interest to the suit property. The plaintiff asserted that after the death of Bajrang the property should have reverted back to Dagadu and could not have been inherited by Krishnabai or Kasabai. The plaintiff did not refer to the fact of partition prior to year 1914 in the plaint but unequivocally admitted the same in the witness box. Both the suits were resisted and it was claimed that the property became separate property of Bajrang on the death of Daji, Bajrang being sole surviving co-parcener and after the death of Bajrang, it was inherited by Krishnabai. On the death of Krishnabai in the year 1939, the property was inherited by Kasabai being sister of Bajrang and consequently, the sale-deeds effected by Kasabai in the year 1942 were perfectly legal and valid. The defendants also claimed that in the alternative, the plaintiff has lost the title to the suit property because the property was held adversely by Kasabai from year 1939 onwards. The trial Judge by Judgment dated 22/12/1978 held that the plaintiff established title to the suit land as after the death of Bajrang the property must revert back to the plaintiff who was the surviving co-parcener in the branch of Balu. The trial Judge negatived the claim of the defendants of acquisition of title by adverse possession. On the strength of these findings, the trial Judge decreed both the suits and two appeals were carried before the District Court, Solapur being Civil Appeal No. 58 of 1979 and Civil Appeal No. 40 of 1979. The Assistant Judge, Solapur dismissed both the appeals by judgment dated 29/12/1980, by holding that the partition between the branches of Balu and Sheshappa was not established and therefore on the death of Bajrang, his share would not devolve on his mother Krishnabai, but would revert back to the male co-parcener Dagadu. The lower Appellate Court held that Kasabai had no interest in the land which was sold. The lower Appellate Court concurred with the finding of the trial Judge that the defendant failed to establish acquisition of title by adverse possession and the plaintiff was not estopped from disputing the title of Kasabai. Against the decision recorded by lower Appellate Court, two second appeals being second appeal No. 531 of 1981 and 532 of 1981 are preferred by original defendant Nos. 1 to 4. As common question of law arises in both the appeals, the two appeals are disposed of by common judgment.

(3.) SHRI Agrawal, learned counsel appearing on behalf of the appellants, submitted that the lower Appellate Court was in error in ignoring the specific evidence given by the plaintiff, asserting that the partition was effected prior to year 1914 between the branches of Balu and Sheshappa. The learned counsel urged that the positive claim made by the plaintiff was bypassed by lower Appellate Court only on the ground that the case of partition was not specifically pleaded in the plaint and issue was not struck by the Trial Court on the fact of partition. In our judgment, the complaint of Shri Agrawal on this aspect is correct because pleadings are not the evidence and a party who deposes in the witness box, cannot be permitted to turn around and claim that the fact of partition should be ignored because it was not averred in the pleadings. On perusal of the testimony of the plaintiff, it is clear that the plaintiff deposed that Ijappa, Sheshappa and Daji, son of Sheshappa partitioned the land between themselves. The specific statement made in the evidence is sufficient to conclude that partition was effected prior to year 1914 between the branches of Balu and Sheshappa and the suit land had fallen to the share of Daji.