JUDGMENT Chavan R.C., J.
1. The appellant herein was the original defendant before the learned Civil Judge, Junior Division, Sakoli, who had dismissed Regular Civil Suit No. 443 of 1988 filed by the respondent/plaintiff against her. The respondent appealed and the appeal came to be allowed by the learned Additional District Judge, Bhandara. Aggrieved thereby, the defendant, the appellant herein, has preferred this appeal.
2. Appellant Manjulabai is undisputedly the daughter of one Bhanu Kuthe, who died on 15-6-1955. The suit-field was likewise undisputedly owned by Bhanu Kuthe and is in possession of Manjulabai almost since Bhanu's death. It has also been mutated in the name of Manjulabai.
3. Original plaintiff Sukhdeo, the respondent herein, and his mother Gangabai, who died during the pendency of the suit, claimed that Gangabai was the second wife of Bhanu after the demise of Manjulabai's mother. Respondent Sukhdeo was Gangabai's son born of said Bhanu. Gangabai claimed that she was the real sister of Manjulabai's mother. The plaintiffs contended that they were the exclusive owners of the suit land after the demise of Bhanu and that Manjulabai was looking after cultivation only because of the minority of respondent Sukhadeo. They, therefore, claimed possession of the suit property. In the alternative, the plaintiffs claimed partition and separate possession of their share in the property.
4. Manjulabai resisted the claim by denying relationship with the plaintiffs. She stated that the plaintiffs had tried to take forcible possession of the property in 1963 itself and that she had resisted the plaintiffs claim. Therefore, according to her, the suit is barred by limitation. She claimed to have perfected title in the suit property by adverse possession.
5. The learned Civil Judge, Sakoli, held that respondent/plaintiff Sukhadeo was the son, and original plaintiff No. 2 Gangabai was the widow, of deceased Bhanu. He, however, held that Manjulabai had proved the ouster of the plaintiffs from enjoying the property and thus had acquired title by adverse possession. He therefore, dismissed the suit.
6. On appeal, the learned Additional District Judge, Bhandara, seems to have erroneously recorded a finding "Yes" against the point in respect of Manjulabai's adverse possession, though the discussion in para 15 of his judgment would show that he had ruled out the case of adverse possession and had held that Manjulabai's possession was permissive. He held that the plaintiff was the sole heir of Bhanu and, therefore, owner of the property. He allowed the appeal and directed that the suit be decreed.
7. Manjulabai has challenged the said order by preferring this appeal, which was admitted on the following question of law. "On whom burden lies in case of suit for possession on title and the defendant pleads adverse possession?"
8. I have heard Shri Thengre, the learned Counsel for the appellant/defendant, and Shri Ghate, the learned Counsel for the respondent/plaintiff. Since the appeal is restricted to the question of burden of proof, the findings about the relationship, etc. cannot be challenged in this appeal. Even so, it may be useful to recount that though the defendant denied relationship and claimed to have not even known plaintiff No. 2, she admitted in cross-examination that plaintiff No. 2 was her mother's real sister. In the context of a practice prevalent in some parts of marrying wife's sister on the demise of wife, there is nothing unusual of Bhanu's marrying Gangabai. Therefore, the courts below have rightly held that the relationship of the parties has been proved and that respondent/plaintiff Sukhadeo is the son of deceased Bhanu.
9. The plaintiff had stated that his father died on 15-6-1955. In her pleadings, though Manjulabai had denied the pleas raised by the plaintiff, she had not suggested any different date of death of Bhanu. It was, however, suggested in cross-examination of the plaintiff that Bhanu died in the year 1960. However, in her own deposition, the defendant herself stated that Bhanu died about 40 years ago and, since she was examined in the year 1990, Bhanu may be taken to have died not later than the date pleaded by the plaintiff, namely 15-6-1955.
10. With these facts, the question of law on which the appeal has been admitted, may be examined. The burden on the plaintiff, who came with the case of recovery of possession on the basis of inheritance, was discharged by him by proving that he was the son of Bhanu and entitled to succeed to Bhanu's property. Therefore, when the defendant came with the case of adverse possession, it was obviously necessary for the defendant to establish the ouster of the plaintiff from enjoyment of the property. If the defendant fails to prove the ouster, it would have to be held that her possession was permissive in the context of relation of the parties and the minority of the defendant at the time of death of Bhanu.
11. The defendant had examined only herself to prove the case of ouster. The learned Counsel for the appellant/defendant, however, submitted that the defendant's words gets support from the certified copy of the plaintiffs own statement before the Revenue Authorities, which is at Exhibit 44-B. In this document, the plaintiff had admitted that Manjulabai's name was mutated in the year 1961 or 63. He also admitted that he had applied for mutation in the years 1971 and 79 and claimed that in 1979, he, his mother and defendant had appeared before the Revenue Authorities, but were asked to come again. He admitted that Manjulabai did not allow his mother to plough the field about 25 years ago.
12. According to the learned Counsel for the appellant/defendant, these statements are enough to establish the defendant's ouster. The learned Counsel for the respondent/plaintiff, however, did not agree. It may be seen that these statements at Exhibit 44-B were recorded before the Revenue Authorities on 7-3-1989, that is after the suit was filed on 29-11-1988 and, therefore, would have a substantially diminished probative value. Further, these statements contained in Exhibit 44-B are not admissions proprio vigore. They are merely contradictory statements. Therefore, unless the said statements were put to the plaintiff, who had stepped in the witness box, and the plaintiff was given an opportunity to explain them, they would be meaningless to support the case put up by the defendant that the plaintiff was ousted from the enjoyment of the property.
13. It may also be seen that the statements are not categorical. The plaintiffs admission that he applied for mutation in the years 1971 and 1979 does not imply that the defendant had opposed the attempt. He stated that in the year 1979, he, his mother and defendant had appeared before the Revenue Authorities. Had Exhibit 44-B contained a categorical statement that in the year 1971 itself Manjulabai had opposed their application for mutation, the question of bar of limitation could have arisen.
14. Further, Manjulabai not allowing plaintiffs mother to ploughed the field about 25 years ago cannot lead to prove the case of ouster of the plaintiff from the enjoyment of the property, since the plaintiff was at that time minor. Therefore, Exhibit 44-B, which was the main plank of the appellant's contentions, does not pave the way of appellant defendant's case of perfection of title by adverse possession.
15. The learned Counsel for the appellant/ defendant drew my attention to a number of decisions. In Kalooram and Anr. v. Mangilal the High Court of Madhya Pradesh held that in a case based on dispossession the burden was on the plaintiff to prove that he was dispossessed within 12 years of filing of the suit. Such is not the case here. In Bhavnagar Municipality v. Union of India and Anr. the Court held that in a suit based on title, the burden was on the plaintiff to prove his title even if the defendant did not plead adverse possession. This case too does not help the appellant/defendant, since the plaintiff has proved the title by showing that he is the son of deceased Bhanu. The facts in Ramiah v. N. Narayana Reddy (Dead) By LRs. were altogether different. In that case the plaintiff filed a suit 13 years after dispossession suppressing that he had been ousted. In this context, the Court held that Article 64 of the Limitation Act applied. It may thus be seen that all these decisions, on which the learned Counsel relies, do not support the contentions which he seeks to raise.
16. The facts in Tej Narain and Anr. v. Shanti Swaroop Bohre and Anr. are also altogether different. In that case, a partition had taken place in the year 1928, whereas the suit for possession on the basis of the share in partition came to be filed in 1955 with the plaintiff having not objected to the defendant's possession over the suit property all along and alleging that he was in fact dispossessed on 7-7-1949, which plea was found to be false.
17. In Satyabhamabai w/o Wasudeo Dhanjode and Ors. v. Chhatrapati S/o Zibal Dhanjode and Ors. the defendants were in possession of the property and enjoying the same to the exclusion of the plaintiffs for more than 35 years and on facts it was held that the plaintiffs had in fact surrendered their rights and shifted to a house which was gifted to them by the grandfather of the parties.
18. Since such are not the facts in the present case, the aforesaid decision do not help the appellant/defendant.
19. The decision in Yeshwant Ramchandra Dhumal v. Shankar Maruti Dhumal reported in A.I.R. 2001 Bombay 384, is totally irrelevant, since the application of consolidation scheme would have absolutely no bearing on the plaintiffs right flowing from inheritance.
20. The learned Counsel for the appellant/ defendant also relied on the decision in Rattan Dev v. Pasam, Devi where the Apex Court held that non-application of mind by the first Appellate Court to the evidence on record raised a substantial question of law. In this case, it does not appear that there is any non-application of mind by the first Appellate Court to the evidence on record. Thus, on facts, adverse possession of the appellant/defendant was rightly held by the learned Judge of the first Appellate Court to have been not proved.
21. It would, therefore, follow that at the time of death of Bhanu in the year 1955, by the principle of survivorship, the plaintiff would succeed to the property of Bhanu, since Bhanu and plaintiff Sukhadeo were the only members of co-parcenary at that time. The defendant being a daughter did not have any heritable interest at that time except right of maintenance. The learned Counsel for the respondent/plaintiff submitted that the defendant had admittedly married and, therefore, she did not even posses the right of maintenance. True it is, that the appellant/ defendant had married one Atmaram Karanjkar according to her own story. She stated that there was no issue from this marriage and, therefore, she returned. Thereafter she married to one Narayan Kambli, who deserted her after one and half years. She seems to have kept one Tulshiram Pitare after being deserted by Narayan Kambli, as may be seen from her own evidence. The learned Counsel for the respondent/plaintiff submitted that even this Tulshiram has taken another wife and has children from the said wife, since the defendant does not have issue.
22. In this context, the defendant may be taken to be either unmarried or abandoned sister of the plaintiff. Tulshiram Pitare or his other family may look after the plaintiff only because the plaintiff has some property. The moment the plaintiff loses right in the property, she would be thrown on streets. In view of this, as either unmarried or deserted sister, the plaintiff would be liable to maintain her. Therefore, in spite of the defendant losing the right to maintenance on getting married and though she would have to seek maintenance from the family of her first, second or third husband, the learned Counsel for the respondent plaintiff offered that the plaintiff would provide for appellant's maintenance. He agreed to a suggestion that instead of creating hassles about maintenance, it may be useful to allow the appellant/defendant to cultivate and enjoy usufruct from the half share in the suit field during her life time. It may also be useful to recall that while filing the suit before the learned Civil Judge, Junior Division, Sakoli, the plaintiff had in the alternative sought partition and separate possession of his share. Therefore, in this context, the following order is passed :
23. The appeal is partly allowed. The decree passed by the learned Judge of the First Appellate Court holding plaintiff to be the owner and entitled to recovery of possession of the entire field, is maintained. However, the respondent/plaintiff is directed to allow the appellant/defendant to cultivate half of the suit field and enjoy usufruct therefrom during her life time.
In the circumstances the parties shall bear their own costs. The decree be drawn up in terms aforementioned.