Bombay High Court
Bapu Shahubuwa Bharati vs Janabai Khushalbuwa Bharati on 8 December, 2009
Bench: N.D. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT
AURANGABAD
SECOND APPEAL NO. 159 OF 1995
Bapu S/o Shahubuwa Bharati,
Age : 40 Years, Occu. : Labour,
R/o Maliwada, Tq. Pathri,
District Parbhani. -- -- -- APPELLANT
(Orig. Deft. No. 1)
Versus
1.
Janabai W/o Khushalbuwa Bharti,
Age : 40 Years, Occu. : Household,
R/o Pathri, Dist. Parbhani.
2. Niwarti S/o Raoji Raswe,
Age : 40 Years, Occu. : Agril.,
R/o Maliwada, Tq. Pathri,
District Parbhani.
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3. Deorao Bhuta,
Age : 54 Years, Occu. : Agril.,
R/o Maliwada, Tq. Pathri,
District Parbhani.
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Deleted vide letter dated 13.06.1996 by Additional
District Judge, Parbhani.
-- -- -- RESPONDENTS
(R. No. 1 orig. plaintiff,
R.No. 2 and 3 Orig.
Defts. No. 2 & 3)
Shri R. S. Shinde, Advocate for the Appellant.
Shri D. K. Kulkarni, Advocate for the Respondent NO. 1.
The Respondent NO. 2 served - absent.
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2
CORAM : N. D. DESHPANDE, J.
Date on which Judgment is reserved : 04.12.2009
Date on which Judgment is pronounced : 08.12.2009
J U D G M E N T :
01. The present appeal is directed against the judgment and
decree passed in Regular Civil Appeal No. 133/1998 dated
21.01.1995 by the learned IInd Additional District Judge, Parbhani,
thereby confirming the judgment and order dated 28.06.1988 passed
by the learned Trial Court (Civil Judge Junior Division, Selu) in
Regular Civil Suit No. 162/1984.
02. The present appellant/original defendant No. 1 has preferred
this second appeal against the concurrent findings of both the Courts
below and on substantial question of law relating to the point of
relationship, non framing of essential issues and failure to record
finding on those issues. The appeal is admitted by this Court vide
order dated 21.06.1995.
03. Heard Shri Shinde, learned counsel for the appellant and Shri
Kulkarni, learned counsel for the respondent No. 1. The present
appellant is the original defendant No. 1. The material facts can be
stated briefly as under :
The plaintiff Janabai filed a suit for declaration of ownership
and also for recovery of possession of the area i. e. Western portion
East-West 31.5 feet x North-South 35 Feet, which is part and parcel
of the suit house No. 2673 situated at Pathri and for perpetual
injunction restraining the defendants from interfering in the
possession of plaintiff with regard to the remaining Eastern portion
of the suit house on the following cause of action.
04. The plaintiff Janabai claimed to be legally wedded wife of one
Khushalbuwa S/o Sukhdevbuwa Bharti. The house property
originally belonged to Sukhdevbuwa of Pathri and after his death his
son Khushalbuwa became the owner of the house property and upon
his death his wife i. e. widow Janabai became owner.
05. It is also alleged that defendant No. 1 with the help of other
defendants No. 2 and 3 illegally dispossessed the plaintiff from the
Western portion of the suit house about 2 to 3 years prior to filing of
the suit, however, she continued to be in possession of remaining
half Eastern portion. So she claimed perpetual injunction to protect
her present possession with regard to Eastern portion.
06. The defendants denied the relationship of plaintiff as widow of
deceased Khushalbuwa. Said Khushalbuwa and his sister Godawari
are the only legal heirs of deceased Sukhdevbuwa. Said
Khushalbuwa was suffering from tuberculosis and during illness
throughout Godawaribai and defendant No. 1 both residing in the
suit property itself, were looking after him till he died leaving behind
no legal heir. It was also contended that after death of Khushalbuwa
his sister Godawari came into possession of the entire suit house and
she sold half Eastern portion to Devrao defendant No. 2 which is in
his use and possession. On these grounds, respondent No.
1/defendant prayed for dismissal of the suit.
07. I perused the impugned judgments passed by both the Courts
below and there are concurrent findings on these important issues,
accepting plaintiffs claim to the suit property being the widow of
deceased Khushalbuwa. It is not disputed that suit property belongs
to Sukhdevbuwa and it is also established on record about their title.
There is also evidence of dispossession of plaintiff and according to
defendant, it is before six years of the filing of the present suit and
Khushalbuwa died prior to 8 to 10 years of filing of the suit. The
defendants categorically denied the plaintiffs alleged relationship
with Khushalbuwa as legally wedded wife and so also the relation to
the house property in possession. So there is no question of suit
being barred by limitation. The learned counsel for the respondent
No. 1 Shri Kulkarni, therefore, urged for dismissal of the second
appeal. I find considerable force in his submissions. The impugned
judgment of the learned First Appellate Court and the learned Trial
Court are upheld. Consequently, the second appeal stands dismissed
with costs.
[ N. D. DESHPANDE, J.]
bsb/Dec. 09
