KRISHNA KANWAR Vs. BRIJMOHAN

JUDGEMENT

(1.) THE following pedegree may be helpful in understanding the facts relevant for the decision of this appeal: - Mohanlal Girdharilal (issuless) Kanhiyalal Biharilal Gerilal (died issveless) Brijmohan Gopal Krishanlal Sunderlal Ganeshlal Govindlal

(2.) BRIJMOHAN and Gopal filed a suit on 8-12-1954 in the court of Munsiff (East) City, Jaipur against Ganeshlal and Govind for possession of one tin shed over the 'jharoka' in the first floor and a 'gotha' in the ground floor of a house situated in the 'chowari Ramchanderji', Jaipur, alleging that the house in question was the ancestral property of Mohanlal gone in adoption to his maternal grandfather Devishanker on 13-9-1879. It was averred that Kanhiyalal and his wife died during the life-time of Mohanlal and at the time of Kanhiyalal's death all his three sons, namely, Krishanlal, Sunderlal and Ganeshlal ware minors and consequently Mohanlal, their natural grand-father, started looking after them, and they also used to mess and reside with Mohanlal, and thus, according to BRIJMOHAN and Gopal, the defendants were in permissive occupation of the apartments in dispute. It was further stated that Krishanlal and Sundrlal died issueless and defendant No. 1 Ganeshlal continued to occupy the apartments in dispute as licencee. The case of BRIJMOHAN & Gopal was that Girdharilal, Biharilal & Gerilal, and other three sons of Mohan Lal inherited the house in question and were in possession of the same as owners, but that on 15th September, 1948 Ganeshlal declared himself to be a descendant of Mohanlal and got an entry made in the survey record to the effect that he had one third share in the house in dispute. This gave rise to the suit by BRIJMOHAN and Gopal, who pleaded that their suit was within limitation by virtue of Article 144 of the Limitation Act, 1908. This suit was registered as Civil Suit No. 453 of 1954.

(3.) IN Sham Koer vs. Dah Koer (7) their Lordships of the Privy Council held that a possession as of right by the widow and daughter-in-law of an undivided Mitakshara family of a portion of the undivided estate for twelve years bars the heirs of the deceased unless they can show that the possession was permissive.