GANPATRAO RANJIT NAGUL Vs. DATTATRYA GURU DAULATGIRI MHARAJ

JUDGEMENT

(1.) This is an appeal by original plaintiffs raising challenge to the judgments delivered by both the courts below.

(2.) Plaintiffs instituted Regular Civil Suit no.546/1981 claiming declaration of ownership and recovery of possession of plot situate at Chouphala, Nanded and further declaration that the registered sale-deed executed by defendant no.2 in favour of defendant no.1 on 27-12-1969 is null, void and ineffective as against the rights of the plaintiffs. Plaintiffs belong to Padmashali Samaj and claim themselves to be the active members of the Samaj. It is claimed that the Mandal owns and administers Mahadev/Shiv and Ganpati temple situate at Chauphala, Nanded. There is open plot adjoining the temple which belongs to the Samaj/community. The temple is in existence since 1949-1950. In 1958, defendant no.2 came in contact with the active members of the community and he was called upon to serve the temple as "Poojari". Defendant no.2 thereupon started residing at the temple and performing the functions of "Poojari". An area admeasuring 100' X 64' has been earmarked and gift deed came to be executed by the members of the community in favour of defendant no.2 for looking after the property as well as the temple. Defendant no.2 was performing his functions as 'Poojari' for all the years preceding presentation of the suit. Plaintiffs came to know that defendant no.2 has tendered an application seeking registration of the temple in his own name. The members of the community presented objection petition with the trust authority and resisted the application. It was also later on revealed that defendant no.2 has sold out certain portion out of the plot in favour of defendant no.l by executing registered sale-deed on 27-12-1969. Infact defendant no.2 has no right to alienate the property belonging to the community. Portion sold away by defendant no.2 is numbered as house no.9-3-106 and certain construction has been raised on the plot which has been alienated in favour of defendant no. 1. It is further stated in the plaint that the members of the community had served upon defendant no.2 a notice of revocation of the gift deed on 27-6-1981. It is contended that the transaction effected by defendant no.2 is illegal and does not bind the right, title and entitlement of the plaintiffs or the members of the community.

(3.) Contentions raised in the plaint have been controverted by defendant nos. 1 and 2 in the written statement presented at exh.19. Defendants question entitlement of the plaintiffs to present the suit on behalf of the community defendant no.2 has admitted that an area admeasuring 100' X 64' has been given to him by the members of the community and a gift deed to that effect has been executed on 28-10-1958. Defendant thus claims his entitlement to the property on the basis of gift deed. Defendant no.2 contends that he has title over the property and is therefore justified in alienating certain portion out of the property to defendant no. 1 by executing registered sale- deed on 27-12-1969. Defendant no.2 claims that he has every right in respect of suit plot and the property does not belong to the temple or the Padmashali Samaj. In additional written statement while stating additional facts in paragraph no. 'C', it is stated that after donation of plot by the members of the community in favour of defendant no.2, he started construction over the plot after securing permission from the municipal authority. Defendant no.2 claims that he has transferred portion out of the suit plot in favour of defendant no.1 by executing registered sale- deed. At the same time, defendants claim in paragraph nos. 'F' and 'G' that defendants are in possession over the property since last more than 12 years and the nature of possession is adverse. It is claimed that defendant nos. 1 and 2 are in possession since the date of execution of gift deed in their favour as owners. Their possession is continuous, open and to the knowledge of all the members of the community and without any interruption from anybody. Defendants as such claim adverse possession and contend that they have perfected their title by virtue of their continuous, open and adverse possession. Defendants as such pray of dismissal of the suit.