ATMARAM BHILA BHATKAR Vs. BALAJI RAGHUNATH JOSHI

JUDGEMENT

(1.) The plaintiff (respondent before us), who is one of two Khoti sharers in the village of Panhali, brought this suit to recover possession of certain lands which formed part of an occupancy tenancy Khata. The lands comprised in that Khata originally belonged to the family of the Bhatkar defendants (Nos. 1 to 7). Plaintiff's case is this. At a partition effected in or about the year 1890, between the first defendant Dhana and his three brothers, Shiva, Ragho and Zil, the suit lands fell to the share of Dhana. In 1895, they were put up to sale in execution of a money- decree passed against Dhana, and purchased by the eighth defendant. In 1899, he obtained possession of the lands through the Court and in 1901 surrendered them to the plaintiff. Since then, plaintiff had been in continuous possession and enjoyment of the lands until 1916 when he was wrongfully dispossessed by defendants Nos. 2 to 7.

(2.) The first defendant Dbana did not resist the plaintiff's claim. It was contested by the third defendant (now appellant) who is a son of Zil. He contended that at the said partition Dhana did not get any share at all in the family estate, and was never in possession of the suit lands ; the auction-sale was void, being in contravention of Section 9 of the Khoti Settlement Act, 1880 ; the auction- purchaser never obtained possession of the lands ; and finally, he did not admit that plaintiff had ever been in possession.

(3.) On those pleadings and on the evidence adduced by the parties the learned appellate Judge, in agreement with the trial Judge, held that after the said partition Dhana bad been in possession and enjoyment of the lands in suit; that he never objected either to the auction-sale or to the purchaser taking possession ; that in 1911 he himself executed a rent-note in favour of the plaintiff; and that the plaintiff came into actual possession of the lands in 1901 and continued therein until 1916 when he was dispossessed by defendant No. 3 who had no title to those lands. He refers to certain rent-notes relied on by the plaintiff" and says : They prove Dhana a possession of the bagayet land as plaintiff's tenant Taking this along with the sale-certificate and the tabapavti the clear inference is that all the suit lands belonged to Dbana and passed to the possession farad of defendant No. 8 and then of plaintiff. Defendant No. 3 has lately come back from Bombay and he has taken possession...of the suit property.