KRISHNARAO SHANKERRAO CHITNAVIS Vs. NARAYAN VENKATRAO

JUDGEMENT

(1.) THIS is plaintiff's Letters Patent Appeal against the decision of Niyogi J. in Second Appeal No. 109 of 1940 dismissing the plaintiff appellant's suit for possession. The plaintiff's suit relates to an abadi site of the village Allipur, district Wardha. The plaintiff is the lambardar of the village and the defendants (respondents here) are the tenants of that village. He claims to recover possession of the said site on the ground that it was bought by one Anand Rao (the father of defendants 2 to 5 and grand". father of defendant l) without his consent. There stands on the site a two-storied house which was occupied by two brothers Alibhai and Hasanbhai Kachhis. The site together with the house was auctioned in execution of a mortgage decree against the Kachhi brothers and it was bought by Anand Rao who entered into possession there-of on 19th November 1934. The defendants pleaded that the site with the house was originally occupied by one Tanba before the time of the 30 years' settlement in 1863. Tanba transferred it to Kashigir whose son Gopalgir transferred it to Ganpati Wanjari whose widow in turn transferred it to Mohammad Ismail, the father of the Kachhi brothers from whom Anand Rao acquired it by auction purchase. Their contention, therefore, is that as the site had been in the occupation of their predecessors in title since before the time of the first settlement (when proprietaiy rights came to be conferred on the malguzars), the transfer in their favour was not a transfer of a mere licence to occupy the site but of ownership and that the said transfer was valid without the plaintiff malguzar's consent.

(2.) THE plaintiff denied that the original occupant had a transferable right or was more than a mere licensee. He also denied that Ganpati Wanjari got the site by transfer from Gopalgir and contended that Mohammad Ismail had admitted his status as a licensee by payment of Rs. 25 as consent, money to the plaintiff when he entered into possession.

(3.) NIYOGI J., however, set aside the findings of the learned District Judge and dismissed the plaintiff's suit for possession. Hence this Letters-Patent Appeal.