MT. GAJABAI Vs. PURSHOTTAM

JUDGEMENT

(1.) THE plaintiffs Mainabai alias Girjabai, and Sundrabai sued the defendants Gujabai, Laxmi, Kesho Appaji, Vithoba, Sitaram and Champat in the Court of the Subordinate Judge, Darwaha for possession of a small site, 30 by 14 cubits, with a chhapri on it situated in mouza Darwaha. Their case was that the site belonged to their deceased father, Balwant Rao, and that after the death of his widow Yamunabai they became owners thereof by right of inheritance. Defendant 1 pleaded that the site belonged to her father and had been so in her possession for over 50 years. Defendant-2 admitted plaintiffs' claim, while Defendant 3's plea was that the site was his ancestral property. The suit proceeded ex parte against the other defendants. On the issues which arose on the pleadings of the parties, the Subordinate Judge came to the following findings: (a) That the site and structure on it were not Balwant Rib's ancestral property. (b) That Yamunabai had not been in possession thereof, nor had allowed Defendant 1 to live on the subject as a licensee. (c) That Yamunabai died about November 1921. (d) That defendants have been in possession for 50 or 55 years but not as owners.

(2.) THE plaintiffs' claim was accordingly dismissed and they appealed to the Court of the Addl. Dist. Judge, Yeotmal.

(3.) IT has been urged on behalf of the appellants (defendants) Gujabai and Kesho Appaji that the Additional District Judge was wrong in upsetting the finding of fact arrived at by the Subordinate Judge, viz., that Balwant Rao was not the owner of the subject, particularly in view of the fact that the Judge of the first Court particularly commended on the demeanour of Mb. Gujabai and accepted her as a true witness. I have been referred to the decision of their Lordships of the Privy Council in Bombay Cotton Manufacturing Co. v. Motilal Shivlal [1915] 39 Bom. 886 in this connexion, but, in my opinion, the decision of the lower appellate Court cannot be impugned on this ground. It was undoubtedly open to the said Court to come to a different decision from the first Court on the question of fact involved and that Court has given primarily satisfactory reasons for so doing.