TUKA LAKHU KADAM Vs. GANU VITHU KADAM

JUDGEMENT

(1.) This is a suit brought by the plaintiffs to recover possession of the plaint lands belonging to the Nayakwadi inam watan which had been alienated by their grandfather and which were not recovered back by their father during his lifetime.

(2.) The plaintiffs grandfather Tatya passed a mortgage in favour of Vyankaji, the deceased father of defendant No. 1, in the year 1868, and sold the property to him on April 16, 1876. The plaintiffs grandfather died in 1891. Lakhu, the father of the plaintiffs, succeeded to the watan, and took no steps to recover the property, and died on April 29, 1907. He left behind him four sons, Ganu who died on March 13, 1917, aged twenty-five, and the present plaintiffs Tuka, Chandra and Natha, who brought the present suit on April 15, 1924, to recover possession of the property alienated by their grandfather.

(3.) The learned Subordinate Judge, relying on the Full Bench decision in Radhabai and Ramchandra Konher V/s. Anantrav Bhagvant Deshpande (1885) I.L.R. 9 Bom. 198 held that the defendants had acquired adverse possession for more than twelve years and therefore dismissed the plaintiffs suit. On appeal, the learned Assistant Judge did not record any decisive finding on the question of limitation, and remanded the case for decision after framing certain issues. On remand, the learned Subordinate Judge considered that the decision of the learned Assistant Judge involved a finding that the case of Radhabai V/s. Anantrav was not applicable to the facts of the case, and held that the plaintiffs suit was not barred by limitation. On appeal, the learned District Judge came to the conclusion that though the correctness of the decision in Radhabai V/s. Anantrav was doubted, it was still good law and that the suit of the plaintiffs was barred by limitation.