DAGADABAI FAKIRMAHOMED Vs. SAKHARAM GAVAJI

JUDGEMENT

(1.) The plaintiff claiming to be the heir of her husband, who died in 1923 sued to eject the defendants from the property in suit. Defendants Nos. 2 and 3 claimed to be the true heirs of the plaintiff's husband, and they denied the plaintiff's rights altogether. They also set up title by adverse possession.

(2.) On the merits the plaintiff's claim to heirship of her husband has been recognised in all the Courts; but the lower appellate Court has ordered that her suit should be dismissed on the grounds of the adverse possession of the defendants, and that contention was upheld on second appeal. The plaintiff now comes in appeal under the Letters Patent.

(3.) It is to be noted that the plaintiff had mortgaged the land, and the mortgagee brought a suit in 1929 against the plaintiff and also against defendants Nos. 2 and 3, who were in possession of the property. He obtained a decree on his mortgage; and it was therein provided that he should have possession for two years and that possession thereafter should go to the plaintiff. He attempted to execute this decree, but the bailiff was assaulted on attempting to hand over possession. It is common ground that possession was never in fact obtained by anybody. It was nevertheless argued in the Courts below that the adverse possession set up by the defendants was interrupted by the decree of 1931; and that point of view has been argued before us also. It has also been suggested that the plaintiff's right to sue arose only two years after the decree of 1931 was passed; but that would not, so far as we can see, affect the question of the adverse possession of the defendants. It is also argued that the possession was not really adverse, since the defendants went into possession in the belief that they were heirs of the man who afterwards was found to be the plaintiff's husband, and until the plaintiff was found to be the heir, it would not be right to infer any intention on their part to keep out the rightful heir. It seems to us that the subsequent conduct of the defendants in resisting the execution of the decree is a sufficient indication of what their probable intentions were. Their possession must on the facts be deemed to have been adverse throughout, unless it can be said to have been interrupted by the decree of 1931.