DIGAMBARRAO HANMANTRAO DESHPANDE Vs. RANGRAO RAGHUNATHRAO DESAI

JUDGEMENT

(1.) This is a first appeal from a decision of the Civil Judge, Senior Division, at Hubli, who dismissed the plaintiff's suit.

(2.) The suit came to be filed by the plaintiff under the following circumstances. The plaintiff's father initiated a suit, being suit No. 438 of 1911, in the First Class Subordinate Judge's Court at Dharwar, by filing a pauper petition No. 5 of 1910 against his brother Laxmipati and others including one Hanmant Krishna Deshpande who was defendant No. 21 in the suit. The suit was a suit for partition claiming a half share in the ancestral properties, the properties included in the suit being Survey Nos. 49, 52, 116, 17 and 20. This suit had a chequered career "as appears from the judgment delivered by this Court in Digambar Hanmant V/s. Shrinivas Laxmipatirao (1937) F.A. No. 84 of 1934, decided by 1937 (Unrep.). The plaintiff's father having died in the meanwhile the plaintiff filed and prosecuted the appeal, and it appears that on December 15, 1937, a decree was passed by the Appeal Court in terms of the compromise which had been arrived at between the plaintiff and defendant No. 21 Hanmant Krishna Deshpande, who was respondent No. 18 in the appeal, under which the plaintiff was declared to be the full owner of survey Nos. 49, 52,116,17 and 20.

(3.) There had been in the meantime another series of litigation to which the plaintiff's father and his brother Laxmipati were parties. A suit being suit No. 551 of 1910 had been filed in the Second Class Subordinate Judge's Court at Hubli by one Padmawa the daughter of one Hanmant against the plaintiff's father, his brother Laxmipati and the heirs of Bistawa and Balawa who were the two sisters of Padmawa. Padmawa had a one-third share in the properties, the subject-matter of the suit, having inherited them as the heir of her deceased father Hanmant after the death of her mother(Jangabai. She had also purchased the one-third share of her sister Balawa, with "the result that in that suit she claimed a two-thirds share in the suit properties. These suit properties were again the very same survey Nos. 49, 52, 116, 17 and 20 and were claimed by Padmawa as belonging to the estate of her deceased father. The plaintiff's father and his brother Laxmipati claimed to be the owners of these properties by adverse, possession. Hanmant Krishna Deshpande, defendant No. 21, in suit No. 438 of 1911 in the First Class Subordinate Judge's Court at Dharwar, was defendant No. 7 in this suit, he having purchased the one-third share of Bistawa the other sister of Padmawa. It appears-that Hanmant Krishna Deshpande relinquished his one-third share in the properties of Hanmant the father of Padmawa, Bistawa and Balawa in favour of one Bhimaji Shivaji and Bhimaji Shivaji also purchased Padmawa's interest in these-properties which had comprised not only her one- third share therein but the one-third share of Balawa which she in her turn had purchased. The result was that Bhimaji Shivaji became the absolute owner of the whole of the interest in the suit properties and he prosecuted the suit in his capacity as such owner against the plaintiff's father and his brother Laxmipati who were claiming these properties by adverse possession. In that suit Bhimaji Shivaji obtained a decree on August 4, 1915, declaring him to be the absolute owner of these properties as against the plaintiff's father and his brother Laxmipati. In execution of this decree Bhimaji Shivaji obtained possession of the suit properties and in 1917 made a gift of the same to Laxmipati's wife by name Tungabai. After Bhimaji Shivaji's death Hanmant defendant No. 1 who was his undivided nephew filed a suit being suit No. 78 of 1928 for possession of the suit properties against Tungabai and obtained possession of the same on March 17, 1984. Defendant No. 1 continued in possession of the suit properties from March 17, 1934, until June 11, 1941, when he was dispossessed of the same under the cicumstances hereinafter stated.