VISHWANATH VITHOBA Vs. GENU KISAN

JUDGEMENT

(1.) THIS is an appeal by defendants 1 and 2. The parties are related to each other as shown In the following pedigree: the plaintiff's grand-father Gyanuji died in 1897. The date of the death of plaintiff's father Kisan is not known, but he died in or about 1923. The branches of Gyanuji's two brothers, Bhausaheb and Maruti are now extinct.

(2.) THE dispute between the plaintiff and the defendants relates to three houses, bearing C. S, Nos. 396, 386 and 576. According to the plaintiff their old C. T. S. Nos. are 663, 468 and 520 respectively. The plaintiff's case is that these three houses were purchased by his grand-father, Gyanuji, on 30-9-1889, 17-4-1893 and 17-8-1895 respectively. Along with the plaint he produced certified copies of three sale-deeds exhs. 75, 76 and 77. The present city survey numbers are not mentioned in these documents. But the plaintiff stated in the plaint that these sale-deeds were in respect of the suit houses. He also mentioned in the plaint the old and the new C. Section numbers of each house. It was also alleged in the plaint that Gyanuji had purchased these houses as manager of the joint family, that after his death, the houses went into the management of the next senior; member of the family, Vithoba, that the plaintiff's father Kisan died as a member of the joint family and that there had been no partition of the family properties. The plaintiff therefore asked for partition and separate possession of a half share In the three houses. The suit was resisted principally by defendants 1 and 2, who are the appellants in present appeal. They did not deny that the sale-deeds, of which the plaintiff had produced certified copies, Exhibits 75, 76 and 77. related to the suit houses. They stated that the houses were the self-acquired and exclusive properties of their father, Vithoba, and that no other member of the family had any right or interest in them. They also contended that they had acquired title to the three houses by adverse possession. They further contended that the plaintiff's father Kisan had separated from the other members of the family after his marriage. It was further urged that the defendants had become the exclusive owners of the three houses by adverse possession. The learned trial Judge did not accept these contentions of the defendants. He held that the three suit houses were joint family properties, that Kisan had not separated from the joint family as alleged by the defendants and that there had been no ouster of the plaintiff or his father from the suit properties. Accordingly, he passed a decree in favour of the plaintiff entitling him to recover possession of his half share in the suit properties. From this decree, defendants 1 and 2 have come in appeal.

(3.) THE first point, which has been urged by Mr. Sukhthankar in this appeal is that the plaintiff has not proved that the three suit houses were purchased by Gyanuji. In order to prove his assertion on this point, the plaintiff has produced the certified copies of three sale-deeds, Exhibits 75 76 and 77. Mr. Sukhthankar has urged that these copies of the sale-deeds are not admissible in evidence. The plaintiff has stated in his evidence that the original sale-deeds are not in his possession but they are in the possession of defendant 1. The plaintiff did not, however, give any notice to defendant 1 asking him to produce the original sale-deeds. Mr. Sukhthankar has, therefore, urged that the certified copies are not admissible in evidence as no notice was given to defendant 1 as required by Clause (a) of Section 65, Evidence Act. The proviso to Section 66, however, enables the Court to dispense with such notice in any case, in which the Court so thinks fit. In 'surendra Krishna v. Mirza Mahamed Syed All', 1936 PC 15 (AIR V23) (A) Their Lordships observed: