RUPACHAND MANNULAL Vs. GANGUBAI

JUDGEMENT

(1.) This is the plaintiffs appeal against the decree passed by the Civil Judge, Senior Division Aurangabad, dismissing with costs his Special Civil Suit No. 12 of 1966 which he had filed for possession of a portion from land bearing Survey No. 23 and situated at village Gharegaon in Aurangabd Taluka of Aurangabad District. The portion of the land from Survey No. 23 which the plaintiffs sued to recover measures 18 acres. The plaintiff further prayed for a perpetual injunction restraining the defendants in the suit from obtaining possession of the remaining portion of the land from Survey No. 23 in pursuance of an order passed by the Sub-Divisional Magistrate in a proceeding under section 145 of the Criminal Procedure Code.

(2.) The plaintiff is the adopted son of Mannulal, Gangubai-defendant No. 1 is the concubine of Mannulal defendants Nos. 2 and 4 are the children of defendant No. 1 from Mannulal and defendant No. 3 is described as the son of defendant No. 1 from her previous husband. Mannulal having died in the year 1962, there were inevitably quarrels between the plaintiff and defendants relating to the property left behind by Mannulal. At this stage it must be mentioned that Kanhyalal the natural uncle of the plaintiff had owned two lands bearing Survey Nos. 18 & 23 and the same had been gifted by him jointly to the plaintiff and his adoptive father Mannulal. That gift deed is at Exh. 86-P. After Mannulals death in the year 1962 in the normal course under section 8 of the Hindu Succession Act the plaintiff would become the owner of both the lands which had been gifted as mentioned above. But a Will at Exh. 87 dated 29th December, 1961, executed a few months before the death of Mannulal, Mannulal willed away the entire Survey No. 23 to defendant No. 2. Here again if the Will is held to be proved, defendant No. 2 would at best get only half of Survey No. 23.

(3.) There were disputes regarding the possession of Survey No. 23 and as already mentioned above there were proceedings under section 145 of the Criminal Procedure Code and the Sub-Divisional Magistrate by his order dated 27th August, 1965 directed that the entire Survey No. 23 should be restored to defendants Nos. 1, 2 and 4 they being presumably in possession of the land within two months next before the passing of the preliminary order. Pursuant to that order possession of 18 acres of Survey No. 23 was given to the defendants on 21st September, 1965; the possession of the other area was not given because there were standing crops in that area.