BADRIPARASAD JAGANNATH AGRAWAL Vs. MADHU DR HARINDRAKUMAR LAHIRI

JUDGEMENT

(1.) By this second appeal the original plaintiff. Badriprasad as also subsequent purchaser from him, Sunil seek to challenge the concurrent judgment and decrees delivered by the courts below. Badriprasad along with one Shaileshkumar filed Regular Civil Suit No. 102/1983 for recovery of possession of the suit house on the basis of title against the present respondent. Plaintiff No. 2-Shaileshkumar claimed that defendant No. 2 Smt. Godawaribai [present respondent No. 2, was not legally weeded wife of his father deceased - Harindrakumar and also her son Madhu was therefore not legitimate child of Harindrakumar. He claimed that both of them were licencees in respect of two rooms of the suit house and their licence was terminated. Shaileshkumar sold suit house to Badriprasad on 21.2.1983. The defendant No. 1 and 2 [present respondent Nos. 1 and 2] denied all these allegations and claimed legal status as also legal heir-ship. They further stated that the plaintiff No. 2 Shaileshkumar was not the exclusive owner of the suit house, but he was acting as /carta of the family after the death of his father, and suit house was purchased out of funds left behind by deceased Harindrakumar. On the basis of these pleadings the trial Court recorded evidence and found that Harindrakumar retired in 1957 and at that time he got amount of Rs. 6000/- towards provident fund. It found that this amount constitute nucleus and through it the suit house was purchased for Rs. 4000/- by Shaileshkumar on 20.3.1962. In view of this findings and also other findings it held that the original defendant being family members and legal heirs of Harindrakumar were entitled as of right to occupy the said two rooms in the said house and therefore, dismissed the suit. The purchaser Badriprasad and his vendor Shaileshkumar together filed Regular Civil Appeal No. 330/ 1985, and 6th Additional District Judge, Nagpur has dismissed that appeal on 4.2.1992. Thereafter Badriprasad alone filed this second appeal on 16.7.1992, which came to be admitted on 22.7.1992 without formulating any substantial question of law.

(2.) On 18.9.1992 the appellant. Badriprasad sold suit house to one Sunil Hazare. Civil Application No. 5657/1999 was then moved by the said Sunil for joining him as appellant No. 2. This Court has on 11.1.2005 granted that prayer. Vendor Shaileshkumar is respondent No. 3 in this second appeal.

(3.) In this background I have heard Advocate Shri A.M. Gordey, for appellant and Advocate Shri N.A. Vyawahare, for respondents on 10.3.2008, 11.3.2008, 12.3.2008 and 13.3.2008. During last hearing i.e. on 10.3.2008, Advocate Shri Gordey, pointed out that Harindrakumar as also Shaileshkumar are Bengali who have migrated to this area because of service of Harindrakumar, as medical officer in private Coal Mines. He therefore, contended that the parties were not governed by "Mitakshara" School of Hindu Law and "Dayabhaga" School of Hindu Law will apply to them. Accordingly on 12.3.2008 the Appellant No. 2 filed Civil Application No. 1951/2008 to raise additional substantial question of law about the applicability of Dayabhaga School of Hindu Law. The parties were thereafter heard for some time and on 18.3.2008 the Appellant No. 2 has filed an application under Order 22, Rule 10 for impleading him as plaintiff No. 3 in the Civil Suit No. 2174/2008. Civil Application No. 2175/2008 has been filed by the appellant No. 2 under Order 6, Rule 17, to raise a issue of Dayabhaga by amending plaint before the trial Court. Civil Application No. 2182/2008 has been filed by the appellant No. 1 for the very same purpose. On 18.3.2008 itself Advocate Shri Gordey, filed Vakalatnama on his behalf. Applications have been strongly opposed by Advocate Shri Vyawahare, for respondent Nos. 1 and 2. No body has appeared for respondent No. 3 /original plaintiff No. 2.