MURARI GOVARDHAN SHETH Vs. UTTAMCHAND DAGADULAL PAGARIYA

JUDGEMENT

(1.) THIS appeal is filed by the unsuccessful plaintiff in R.C.S. No.289/1980 wherein the Joint Civil Judge,Junior Division, Jalgaon, by order dated 08-04-1988 dismissed his suit being not maintainable under section 47 of the Civil Procedure Code.

(2.) THE plaintiff came with the case that he owned Municipal House No.96 situated on city survey No.1944/1 and 1945/1. Out of this property, the plaintiff purchased 7/8th share in public auction on 04-01-1974 in Special Darkhast No.13/1972 arising out of the decision of Special Civil Suit No.2/1968. The auction came to be confirmed on 27-01-1976 and sale certificate was issued on 30th November 1976. As there were tenants in the house, the plaintiff got symbolic possession in June 1978. Thereafter, there was public auction of remaining 1/8th share by Income tax recovery office, Nashik which the plaintiff purchased on 25-05-1979. The auction was confirmed in June 1979 and sale certificate was issued to the plaintiff for remaining 1/8th share by the Income-tax authority on 12-09-1979. Thus, the plaintiff became the full owner of the Municipal House No.96. Father of defendant deceased Govardhan alongwith Sukhdeo, Chainiram, Gajanan, and Ramswarup were all members of joint family and Special Civil Suit was filed against them being Special Civil Suit No.2/1968. Due to some encumbrances of Income-tax office, auction of 1/8th share belonging to Gajanan could not be held in Special Darkhast No.13/1972 and the plaintiff purchased 7/8th share. The remaining 1/8th share belonging to Gajanan was sold as stated earlier which the plaintiff purchased. On the first floor of the said house on south side there were two rooms admeasuring 25' x 5' in possession of deceased Govardhan, who was party to Special Civil Suit No.2/1968 and Special Darkhast No.13/1972. After his death, the defendant is occupying suit house. The judgment and decree in Special Civil Suit No.2/1968 and order passed in Special Darkhast No.13/1972 are said to be binding on defendant's possession and as it is allegedly illegal. Therefore, notice was issued to the defendant but he did not comply with it. Hence, suit came to be filed for possession.

(3.) THOUGH the issues were settled and suit was to proceed according to law, the defendant raised preliminary objection regarding maintainability of the suit on the ground that the suit was not maintainable by virtue of provisions of section 47 of the Civil Procedure Code. After hearing both the parties, the learned trial judge came to the conclusion that the suit was not maintainable and hence it came to be dismissed. Hence the present appeal.