UMAKANT JANGLUJI NIKHADE Vs. NARAYAN NIMBAJI WANKHEDE

JUDGEMENT

(1.) By this Second Appeal, the original plaintiff has challenged the reversing judgment and decree delivered by Appellate Court below dismissing his suit against present respondent for delivery of possession and for mesne profits. He filed civil suit vide R. C. S. No. 272/1982 originally on the basis of Will executed on 25-9-1950 in his favour by one Thakabai who expired on 3-8-1951. It came to be decreed on 21-7-1984 by Third Joint Civil judge (Junior Division) , Nagpur. Defence of present respondent was that as he married niece of Thakabai and adjacent plot was lying vacant, Thakabai permitted him to occupy and construct a house upon it. He contended that it was license which became irrevocable in view of section 60 of Indian Easements Act, 1882. Present respondent thereafter filed R. C. A. No. 470 of 1984 and Joint district Judge, Nagpur vide judgment dated 30-8-1988 allowed that appeal and dismissed the suit. After second appeal was admitted, Plaintiff/appellant moved civil Application No. 2500/2005 for amendment claiming title to very same property also as reversioner of deceased Thakabai. That amendment has been allowed on 21-8-2006 and this Court permitted present respondent to carry out consequential amendment in his written statement. However before that on 19-6-2006 this Court after noticing that this appeal came to be admitted without formulating any substantial question of law, directed the appellant to submit such questions. The plaintiff/appellant accordingly submitted following four questions on 7-7-2006 as substantial questions :-

(2.) Thakabai was widow of Kawadu and she expired on 6-8-1951. Jangalu was real brother of Kawadu. Plaintiff Umakant is son of Janglu and defendant or present respondent Narayan is husband of his real elder sister. The position is apparent from following family tree :- (brothers) Janglu Kawadu and his wife named thakabai (expired - 6-8-1951) Issues parwatibai Savitrabai Umakant married to one plaintiff narayan-defendant on 22-12-1981, plaintiff served a legal notice upon defendant and asked him to vacate the house pointing out his title in view of registered Will dated 25-9-1950 in his favour by Thakabai. As the defendant did not vacate, he filed suit. Defendant claimed that there was no Will executed by Thakabai in favour of plaintiff and also stated that Thakabai was not the owner of house occupied by him. He stated that he got married with real sister of plaintiff in year 1949 and that time Thakabai was only surviving member in the family besides his wife and her sister, both minors and present plaintiff, also a minor. Thakabai requested him to construct the fallen house on adjacent plot lying vacant and occupy it. Accordingly he constructed a pucca house and since 1948 has been residing there as its owner to the full knowledge of Thakabai and plaintiff without any objection or obstruction. He also stated that in view of section 60 of Easements act his license has become irrevocable.

(3.) I have heard Advocate Shri C. S. Kaptan for appellant-plaintiff and advocate Shri N. K. Deshpande on behalf of respondent-defendant. At the outset it needs to be stated that both learned Advocates have left the issue of Will untouched. Advocate Deshpande has contended that the claim as reversioner is not open in law for scrutiny and, even otherwise, plea raises certain disputes about facts. Advocate Kaptan for plaintiff has argued only on the point of reversion and corresponding issue of limitation contending that plaintiff has to succeed only on issue of reversion. He places reliance upon family tree and chronology in support. He has not touched any other issue including question nos. 3 and 4 submitted by him. Advocate Deshpande has contended that plea of reversion cannot be looked into because as per Article 141 of Indian Limitation act, 1908, the possession of present defendant became adverse to plaintiff immediately upon death of Thakabai on 6-8-1951 and period of 12 years had also expired before the amended provisions vide Article 65 (b) of Limitation Act, 1963 were brought into force. He points out that first notice of plaintiff itself is dated 22-12-1981 and there is no evidence on record about exercise of any ownership rights by plaintiff after death of widow Thakabai in 1951 till then. He argues that in original suit the defendant was called upon to meet the case of will by thakabai in favour of plaintiff and there is no evidence on record about the nature of property of Thakabai, her other heirs and therefore for application of concept of reversion to said property. He argues that amendment allowed by this court will not relate back to the date of suit in present facts. He also stated that if this Court finds that suit as amended was not time barred on the date of its institution, this Court should remand the matter back to trial Court for considering the controversy. He states that correctness of family tree is also being disputed and needs to be examined by trial Court after parties lead evidence. In support of his contentions he has relied upon judgments reported at AIR 2001 SC 2607, Vishwambhar vs. Laxminarayan and 2006 (4) Mh. L. J. (SC) 506 = AIR 2006 SC 1786, Jagat Ram vs. Varinder Prakash.