YASOO VITHOBA Vs. BABUBAI

JUDGEMENT

(1.) THIS is defendant's appeal and it arises out of a judgment and decree passed by the learned Joint Civil Judge S. D. at Jalgaon, in Special Regular Civil Suit No. 15 of 1949. By this suit, the plaintiff-respondent sought to recover possession of the suit properties from the defendant together with mesne profits and costs. The learned trial Judge decreed the suit in favour of the plaintiff and ordered the defendant to deliver possession of four lands described in Clause (a), (b), (c) and (d) of para 4 of the plaint to the plaintiff. The learned trial Judge also directed the defendant to pay to the plaintiff Rs. 1200 and three fourths of the costs of the suit. Against this decision, the defendant has appealed.

(2.) THE defendant-appellant Is the uncle of the plaintiff's husband. It is the case of the plaintiff that her husband and the defendant were separate in status and that the property of the plaintiff's husband was being separately enjoyed by him. The plaintiff's husband died on 13-3-1946. At that time the plaintiff was pregnant. About three months after the death of her husband, the plaintiff gave birth to a daughter. For the purpose of her confinement, the plaintiff had gone to the house of her brother and she contends that, taking advantage of her absence, the defendant wrongfully took possession of all her properties and has been enjoying the properties since then. It is in these circumstances that she has filed the present suit.

(3.) WHILE resisting the suit of the plaintiff, the defendant admits that he and the plaintiff's husband were separate in status and that the plaintiff's husband was enjoying his properties separately. It is, not disputed by the defendant that, during the life-time of the plaintiff's husband, the suit properties were in the possession and enjoyment of the plaintiff's husband as his properties. It is however contended by the defendant that, when the plaintiff's husband fell ill, he asked the plaintiff that she must act as advised by the defendant and further asked her that in case he (plaintiff's husband) died, the plaintiff must take in adoption one of the four grand-Bens of the defendant, so that the suit properties might not go out of the family. The defendant goes on to contend in his written statement that, alter the death of the plaintiff's husband and as advised by the plaintiff's husband, the plaintiff gave the suit lands, to the defendant on lease, and that ever since then the defendant has been in possession of the suit lands as a tenant and not as a trespasser. Consistently with this position taken up by the defendant, he contended that he being a tenant, a civil court has no Jurisdiction to entertain a suit of the nature filed by the plaintiff and that the proper remedy for the plaintiff is to approach a tenancy court. It is further contended by the defendant that the value of the suit property being less than Rs. 5000. the court of the Joint Civil Judge, S. D. had no jurisdiction to try the suit.