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IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
Arun Bhansali, J.
Shanti Lal S/o Bherulal - Appellant
Vs.
Shantilal S/o Footarmal - Respondent
S.B. Civil First Appeal No. 212 of 2002
Decided On : 27-04-2021
Civil Procedure Code,1908 - Order XLI Rule 27 - Possession of the suit property and mesne profit - Owner and in possession of the immovable property - Sought permission of plaintiff - Sought relief of possession of disputed house and claimed - Suit was filed by the plaintiff possession of the suit property and mesne profit on ground that one plaintiff's maternal uncle, executed a will and as such all the rights which had came to be vested in him qua immoveable property and since then plaintiff is the owner and in possession of the immovable property - Plaint that was residing with him being a widow at a young age and as it was the Will of the testator that she can reside in the suit property till her death and as such, she remained in house after death - Claimed that as plaintiff was only son of his father, for helping him in his cloth business he used to reside with his father and would regularly visit suit property and that in a room situated on left side at the entrance of the house, plaintiff's goods were lying under his lock and key – Held, After his death, she should be owner of house necessarily means that house belonged there is no material relied on and/or available, whereby, had bequeathed property to could not get ownership of property - She had remained in possession of property for a long time based on such possession, she had become owner and as such, the claim sought to be made by defendant on part adverse possession cannot be countenanced under any principle of law - Property belonged to which fact has been admitted by DW1 in his statement and is clearly reflected in Will (Ex. A1) said to have been executed and Will executed (Ex. 1) has been found proved, defendant cannot claim any right to continue to remain in possession of the property in question - apparently have no substance, inasmuch claim of adverse possession already stands negative and the only material which has come on record based on statement of PW1 pertains to a so-called denial suit has been filed in year 1992, the same is well within limitation prescribed under Article 65 of Limitation Act - Defendant and/or point of time has not been asserted as to from which point of time possession become adverse and/or the limitation to claim possession started to run - Plea of adverse possession is sought to be raised that also also clearly results in an admission on part of defendant regarding the title of the plaintiff, as plea of adverse possession can only be raised against true owner – Appeal dismissed.
JUDGMENT :
Arun Bhansali, J.
1. This appeal under Section 96 CPC is directed against judgment and decree dated 07.08.2002 passed by District Judge Pali, whereby, the suit filed by the respondent - plaintiff has been decreed for possession and mesne profit.
2. The suit was filed by the plaintiff on 11.08.1992 for possession of the suit property and mesne profit on the ground that one Hastimal, who was plaintiff's maternal uncle, executed a will dated 08.11.1976 in his favour, the said Hastimal died on 19.12.1976 and as such all the rights which Hastimal had came to be vested in him qua the immoveable property and since then plaintiff is the owner and in possession of the immovable property.
3. It was further indicated in the plaint that Late Hastimal had a sister named Sukniya Bai, who was residing with him being a widow at a young age and as it was the Will of the testator that she can reside in the suit property till her death and as such, she remained in the house after the death of Hastimal and that Smt. Sukniya Bai died on 12.05.1992.
4. It is claimed that as plaintiff was the only son of his father, for helping him in his cloth business he used to reside with his father and would regularly visit the suit property and that in a room situated on left side at the entrance of the house, plaintiff's goods were lying under his lock and key.
5. Further averments were made in the plaint that about 15-16 months back Smt. Sukniya Bai sought permission of the plaintiff to keep the defendant in the house to help her as she was quite old, which was permitted by the plaintiff; after the death of Smt. Sukniya Bai, the plaintiff sought the defendant to vacate the premises, who promised to hand over the possession of the house but did not vacate and as such the plaintiff revoked the license of the defendant and gave notice dated 07.07.1992, which was refused by the defendant.
6. Based on the said averments the plaintiff sought relief of possession of the disputed house and claimed mesne profit @ Rs. 500/- per month.
7. The appellant - Defendant contested the suit by filing a written statement on 18.02.1994. It was claimed that deceased Hastimal used to treat defendant as his son and he used to live in the house with Hastimal and after death of Hastimal, he has been residing in the house.
8. It was further claimed that even Smt. Sukniya Bai used to treat him as adopted son of Hastimal and as Sukniya Bai was living in the house as the heir of deceased Hastimal, no Will was executed by Hastimal in favour of the plaintiff on 08.11.1976.
9. It was claimed that perusal of the document reveals that the same is not a Will, it was not signed by deceased but was a forged document and as such plaintiff has no right in the suit property, the possession of the plaintiff was denied. The allegations about Sukniya Bai keeping the defendant in the house with the permission of the plaintiff were denied.
10. It was claimed that possession of the defendant on the house was as an owner. In the additional pleas it was stated that Smt. Sukniya Bai remained in possession of the property after death of Hastimal as an owner and she expressed herself to be owner of the property to the knowledge of the plaintiff. Smt. Sukniya Bai executed a Will dated 27.05.1987 in favour of the defendant and got it registered on 01.06.1987.
11. It was also claimed that after the death of Hastimal on 19.12.1976 Smt. Sukniya Bai's possession was adverse to everyone and particularly the plaintiff to his knowledge. The document dated 08.11.1976 was a gift-deed and was inadmissible in evidence for want of proper stamp duty and registration.
12. It was prayed that the suit be dismissed. The plaintiff filed replication and reasserted the facts stated in the plaint and denied the allegations made by the defendant.
13. Based on the pleadings of the parties, the trial court framed following six issues:-
^^¼1½ D;k oknh 'kkafryky ds i{k esa e`rd gLrhey us fnukWad 8-11-76 dks olh;rukek dj vpy o py laifŸk okn
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