PRAVINBHAI UTTAMRAO RESHAMWALLA Vs. NALINIKANT KISHANDAS BANIA

JUDGEMENT

(1.) THE plaintiff Mst. Gitabai filed this appeal against the reversing decree of the lower appeal Court by which her suit under Order 21, Rule 103, C. P. C. . for declaration of her title to occupancy plot khasra No. 73, area 5-13 acres, of village Ner in Burhanpur tahsil was dismissed. Mst. Gitabai died during the pendency of this appeal and her legal representatives were, therefore, brought on record.

(2.) DHIRAJLAL, a Gujrati Bania, held the disputed plot as an occupancy tenant. One Mst. Bhimabai claimed to be his widow, although the lower Courts have found that she was only his concubine. Dhirajlal had leased out the disputed plot to Chindhu (defendant 4) for 4 years, from 1948-49 to 1951-52. Dhirajlal died on 4th October, 1948 leaving behind him surviving Mst. Bhimabai a sister Mst. Gitabai, (plaintiff), a pre deceased sister's son Kishandas (defendant 2) and his son Nalinikant (defendant 1 ). On 3rd March 1952, Mst. Gitabai leased out the disputed plot to Daulat (defendant 3) for one year. Thereafter, on 9th July 1952, Mst. Bhimabai executed a gift deed in respect of that plot in favour of Kishandas.

(3.) MST. Gitabai filed Civil Suit No. 73-A of 1954 for arrears of sub-rent and possession against Daulat on the averment that he was allowed to continue the lease for 1953-54. Chindhu was also impleaded as a defendant in that suit, which ended in a compromise decree for possession in favour of Mst. Gitabai. Subsequently, Mst. Gitabai filed an application under Order 21, Rule 97, C. P. (X alleging that Nalinikant had obstructed delivery of possession. That application was dismissed on the ground that Nalinikant was bona fide in possession on his own behalf. Thereupon Mst. Gitabai launched the suit out of which this appeal arises.