DHARMA RAGHUNATH DESAI Vs. KESHAV GUNAJEE KONDKAR

JUDGEMENT

(1.) This is a Letters Patent appeal against the decision of Mr. Justice Shingne, sitting singly, in a suit brought by the plaintiff, to recover by partition a moiety of the plaint property with mesne profits and costs. The Subordinate Judge of Vengurla awarded the plaintiff's claim, and on appeal, this decision was confirmed by the First Class Subordinate Judge of Ratnagiri with appellate powers. There was a second appeal against that decision, which was confirmed by Mr. Justice Shingne, and there is now a Letters Patent appeal against his decision.

(2.) The facts are simple. There were certain sheri lands in the Malvan taluka which were let out by Government on lease for thirty years. The lands in suit were in the possession of the father of defendants Nos. 1 and 2. The present defendant No. 1 is the appellant. Although the lease was in the name of Anant, a member of another branch of the family, it is now quite clear that the actual lessee was the father of defendants Nos. 1 and 2. On his death, defendants Nos. 1 and 2 became entitled to equal shares in these lands. Defendant No. 2 let his half share of the lands to his brother defendant No. 1. Now defendant No. 2 had mortgaged his share to the present plaintiff, and in execution of a decree against him the present plaintiff had purchased half of defendant No. 2's interest in the equity of redemption. There was a kabulayat in the year 1897 and the plaintiff was obliged to bring various rent suits against defendant No. 1 to recover the income of the half share which defendant No. 2 had mortgaged to him. The kabulayat expired in 1907, but defendant No. 1 did not give possession to defendant No. 2 or to his mortgagee the plaintiff, and there was a suit brought on that account which went up to the High Court. Meanwhile in 1913, the thirty years lease granted by Government expired, and under the orders of Government the, revenue authorities held inquries to see to whom a new lease under the ordinary occupancy tenure could be granted. At the revenue inquiry defendant No. 1 appeared, as did one or two other claimants including the plaintiff, and ultimately the revenue authorities decided to grant the occupancy tenancy to defendant No. 1. That was in 1914 and the present suit was brought by the plaintiff as representing the interest of Atmaram, defendant No. 2, who is the brother of defendant No. 1, to recover possession of his half share in the property.

(3.) This suit has been contested on every possible ground, but all the Courts up to the High Court have found against the appellant defendant No. 1. In this Letters Patent appeal one or two issues have been introduced, which, so far as I can see, were not argued before in spite of the lengthy litigation which has already proceeded with regard to this property. Before Mr. Justice Shingne (I quote from paragraph 7 of his judgment) the points raised were (1) that the patta of 1883 was in the name of Dadaji, the father of defendant No. 3, and that Raghunath, the father of defendants Nos. 1 and 2, and after him defendant No. 1 were trespassers on suit lands, and therefore, Section 90 of the Indian Trusts Act will not apply ; (2) that failing on this point, it was contended that defendant No. 1 was holding the moiety in suit lands as a tenant- on-sufferance and was, therefore, in adverse possession, and so Section 90 will not apply ; (3) that failing on these points, it was contended that defendant No. 1 will at the most be a tenant-in-common of suit lands and cannot be said to be a trustee for his co-sharer, and therefore Section 90 will not apply.