1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 01 OF 2009 WITH CIVIL APPLICATION NO. 149 OF 2009 Devidas s/o Eknathrao Revkidevkikar (Died through his L.Rs.) 1. Chandrakant Devidasrao Revkidevkikar R/o Dhondipura, Dist. Beed and another. .. Appellants Versus Sitaram s/o Yashwant Kulkarni, Died through his L.Rs. 1. Smt. Ashabai s/o SItaram Kulkarni, R/o. Hiralal Chowk, Beed and another. .. Respondents ... Mrs. M.A. Kulkarni, Advocate for appellants. Mrs. Asha Rakh, Advocate for respondent No.1. Mr. A.H. Vaishnav, Advocate for respondent No.2. ... CORAM : K.K. TATED, J. RESERVED ON: 29th JUNE, 2009 PRONOUNCED ON:7th JULY, 2009 PER COURT : 1. Heard learned Counsel for respective parties. 2 2. Present Second Appeal is preferred by original defendants challenging the judgment and decree dated 05-12-2008 passed by the District Judge-1 Beed in R.C.A. No. 195/2003 arising out of the judgment and decree dated 30-09-1982 passed by the Civil Judge, Senior Division, Beed in Special Civil Suit No. 4/1980. The respondents are legal heirs of the original plaintiff. (Hereinafter parties are referred to as they are referred to in the plaint). 3. The plaintiff filed Special Civil Suit NO. 4of 1980 in the Court of Civil Judge, S.D. Beed for possession of southern half portion of House No.602 situated at Tilak Road, Beed. It is the case of the plaintiff that previous owner and possessor of the suit house was one Jankabai, the widow of Ramchandrarao Joshi. She was widow of real uncle of the defendant. Jankabai expired on 28-12-1979 at Hyderabad (A.P.). Father of defendant and said Ramchandrarao were separate by partition and suit house fell to the 3 share of Ramchandrarao, husband of late Jankabai. The northern half share of House No. 602 came to the share of father of defendant. Division of the property was done more than 60 years ago. Since the date of partition, Ramchandrarao and Eknath, father of defendant remained in possession of their respective house properties i. e. northern half share of House No. 602 in possession of Eknath, father of defendant and southern half share of House No. 602 in possession of Ramchandrarao. After death of husband of late Jankabai, Jankabai possessed of the suit house as his heir and she remained in exclusive possession of the share as owner. Jankabai had leased out some portion belonging to her in the house to one Vishnupant Godbole. It is the case of the plaintiff that the defendant, with mala fide intention had filed suit against Vishnupant Godbole for possession of leased portion i. e. R.C.S. No.153 of 1342 Fasli claiming therein that Vishnupant Godbole was his tenant. On coming to know these facts, 4 Jankabai made application in the said suit for joining her as party - defendant and litigation ended in her favour up to High Court of Hyderabad. That suit was originally decreed in favour of present defendant but Jankabai took the matter to appellate Court which reversed decree of trial Court and High Court confirmed the decision of the appellate Court. The plaintiff stated that the defendant, as per decree of the trial Court, got possession of leased portion but as per decision of the High Court, Jankabai applied for restitution of possession, mesne profits against the present defendant. In pursuance of the said application, Jankabai got possession of the leased portion from the present defendant on 30-08-1352 Fasli as per execution petition No. 399 of 1354 Fasli and she also recovered amount of mesne profits of Rs.264/- from the present defendant by filing execution petition. 4. It is the case of the plaintiff that the 5 present defendant filed Civil suit for perpetual injunction and possession of southern half share of House No. 602 which is now disputed property against Jankabai in Civil Court being R.C.S. No. 127/1968. Said R.C.S. No. 127/1968 was instituted by the defendant for obtaining possession of the house property under Section 6 of the Specific Relief Act, 1963 and also for perpetual injunction in respect of remaining some portion of the suit property. In the said R.C.S. No. 127/1968 Court framed the following issues with findings recorded against them. ISSUES FINDINGS (1) Does the plaintiff prove that the defendant was put in possession of the portion shown as "A B C D G O, KI J" in the map annexed with the plaint on 30th Teer 1352 Fasali? .. Yes. (2) If yes, does he further prove that he dispossessed the defendant from that portion some time during the year 1944 and since then he himself 6 remained in possession of the said portion till 23rd June 1968 to the knowledge of the defendant? ..No. (3) If so, whether this possession makes the plaintiff the owner of the said portion by adverse possessions.? .. No Does not survive (4) Whether the plaintiff further prove that the defendant forcibly obtained possession of the portion shown in red lines in the map annexed with the plaint? .. No. (5) If yes, whether the plaintiff is entitled to get back the possession of the portion shown as I and II in the map annexed with..Does the plaint from the defendant not u/s 6 of the Specific Relief Act? survive (6) Whether the plaintiff is also entitled to an injunction against the defendant so far as the possession in the portion shown as III in the said map? .. No. (7) If not, whether the defendant proves that in the partition between her husband and the father of the plaintiff, her husband was allotted southern half portion in the whole suit wada? .. Yes. (8) If yes, whether she also proves that since that partition her husband and 7 after his death, she is in possession of the said southern half portion in the suit wada? ... Yes. (9) Whether the description of the suit wada as given by the plaintiff is correct? If not, what is the correct description of the same? ... Yes. (10) Whether the plaintiff's.. No as far as suit is within time.? the claim under Specific Relief Act 63 is concerned. (11) Whether the valuation of the subject matter of the suit as made by the plaintiff is correct? If not, what is the correct valuation of the same.? .. Yes. (12) What decree or order? ..As per the order passed at the end of this Judgment. 5. Said suit came to be dismissed with costs. In the said suit, Court also held that Jankabai, widow of Ramchandra proved that in the partition between her husband and father of defendant herein, her husband was allotted southern half portion in the suit House No. 602. Present plaintiff is a nephew of late Jankabai i. e. his 8 father Yashwantrao was brother of Jankabai. Jankabai had no other near relations. The plaintiff being her nephew always was serving her properly. Jankabai on 28-07-1971 executed a registered will deed in favour of plaintiff at Beed and that she bequeathed suit property to him. At the time of execution and registration of the will, Jankabai was in sound mind and body. In the year 1976 when Jankabai was at Hyderabad, she met with an accident and therefore, she was forced to live at Hyderabad, as in that accident she suffered several injuries on the back and waist. Thereafter, she expired on 28-12-1979. Thereafter, the plaintiff came to Beed on 26-01-1980 for seeing the suit property bequeathed to him by late Jankabai by registered will deed dated 28-07-1971. At that time, the plaintiff found that the defendant was in occupation of the suit house. Therefore, the plaintiff asked the defendant to deliver him possession of the suit house of which he had become the owner on the 9 strength of will duly executed by late Jankabai who was its previous owner. The defendant flatly refused to do so and hence, the plaintiff filed the present suit for the following reliefs. (A) A decree of possession of the suit property more particularly described in para. no. 1 of the plaint be passed in favour of the plaintiff and against the defendant. (B) A direction for an enquiry about future mesne profits from the date of suit till the recovery of possession under Order 20 Rule 12 C.P.C. may be passed. (C) Costs of the suit may be awarded to the plaintiff. (D) Any other relief to which the plaintiff will be found entitled. 6. In the said suit, the defendant appeared and resisted the claim. The defendant contended that said Jankabai did not execute any will deed in favour of the plaintiff as alleged. She was also not in a fit mental and condition and sound disposing state of mind as alleged. It is the 10 case of the defendant that will is a forged document. She never executed said registered will in favour of the plaintiff. He further contended that she had no natural love and affection for the plaintiff. He further submitted that there was no partition between Ramchandrarao Joshi and defendant's father. The defendant further submitted that the suit property was part of the house which was ancestral property of the defendant. Eknath, father of defendant and Ramchandra, husband of Jankabai were brothers inter se and they were members of Hindu joint family till their death. Suit house is part of the property belonging to the said joint Hindu family. They had never partitioned the estate during their life time. Said Ramchandra never resided at Beed. He permanently resided at Hyderabad. The defendant being last surviving co-parcener, has become exclusive owner and possessor of the entire ancestral property including suit house. Since after death of Ramchandra, said Jamkabai was 11 widow of said joint family and was entitled to only maintenance. After death of Ramchandra, said Jankabai continued to live permanently in "Math" of Bhatji Bapu at Hyderabad till her death. She was never in actual and physical possession of the suit house at any time. Said Ramchandra and father of defendant were getting cash grant of Rs.1/- per day. After death of Ramchandra, succession of cash grant was sanctioned in the name of defendant, but it was ordered that amount of cash grant be paid to said Jankabai by way of maintenance till her life time. In the alternative, the defendant claimed adverse possession of the suit property, as a owner. The defendant contended that he was in possession of the suit property to the knowledge of the plaintiff and deceased Jankabai for more than 60 years next before the suit by denying her title, therefore, the defendant acquired prescriptive title to the suit house. 7. Both the Courts below categorically held 12 that the suit house was owned and possessed by Ramchandra Joshi on the basis of partition between himself and father of defendant. Both the Courts below further held that the plaintiff proved execution of will by Jankabai in his favour on 28-07-1971. With the assistance of both the learned Counsel, I have gone through the Record and Proceedings in the present case. Learned Counsel appearing on behalf of the defendant submitted that the lower Court erred in relying judgment and decree in R.C.S. No. 127/1968 in which it is held that Jankabai become owner of the suit house. Learned Counsel appearing on behalf of the defendant further submitted that both the Courts below failed to appreciate that the defendant was in possession of the suit premises for last 60 years to knowledge of the plaintiff and therefore, the defendant acquired title to the suit property by adverse possession. 8. From the evidence on record, it is clear 13 that the defendant has not only admitted the fact that Jankabai was declared owner of the southern half share of the suit house but also admitted her possession. In both previous litigation Courts held that Jankabai was owner of the suit premises and she was in possession since beginning. Learned Counsel appearing on behalf of the plaintiff pointed out the evidence of defendant at Exhibit-63 in which he specifically admitted that in a suit filed by him against Godbole, the tenant of suit premises, Civil Court held in favour of plaintiff as owner. He further admitted in his deposition in Para. 4 that he filed suit for possession of certain portion and for permanent injunction against Jankabai which came to be dismissed. Para. 4 of the deposition of the defendant reads as under. "4. In 1968 I had filed the suit for possession of certain portion and for perpetual injunction for some other portion of the suit house, against Jankabnai. The 14 entire suit house was not in dispute in the aforesaid suit of 1968. That suit was for some portion of the suit house. I used to let out the suit house to the tenants. Moreshwar Joshi, Someshwar Ghayal, Pund, Gopalrao Deshpande, were my some of the tenants. I do not recollect their full names." 9. The defendant used to let out the suit premises , as an agent of Jankabai, who used to stay at Hyderabad. He himself admitted in his deposition Para. 7 that Jankabai handed over the key of the southern portion of the house while going to Hyderabad. If this is the case, then the defendant cannot claim adverse possession in respect of the suit premises. Both the Courts below categorically held that the defendant failed to prove his title to the suit premises. As the plaintiff succeeded in proving that the suit property was received by Jankabai from her husband in the partition of H.U.F., the defendant had no right, title and interest to claim any ownership of the suit property. The defendant has not indicated any 15 legal flaw in the appreciation of evidence on record by two Courts below. Therefore, no question of law, leave apart substantial question of law, is involved in this appeal. Therefore, Second Appeal is dismissed summarily with no order as to costs. 10. In view of the dismissal of Second Appeal summarily, nothing survives in the present Civil Application and same is rejected. [ K.K. TATED, J.] sut/JUN09/sa-1.09 16 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.01 OF 2009 Office Notes, Office Memoranda of Coram, appearances, Courts orders or directions and Registrar's orders Court's of Judge's Orders. .... Mrs. M.A. Kulkarni, Advocate for Appellants. Mrs. Asha Rakh, Advocate for R-1. Mr. A.H. Vaishnav, Advocate for R-2. .... CORAM: K.K. TATED, J. DATE: 7th JULY, 2009. PER COURT: 1. Learned Counsel appearing on behalf of the appellants seek stay of the order dated 7th July 2009 passed in Second Appeal No. 01 of 2009. 2. Considering the facts in the present matter, said request is rejected. (K.K. TATED,J.) sut/JUL09/sa1.09