The relief of possession is not fatal to the appellant in a property dispute.

JUDGMENT

1. This appeal u/S.96 of the CPC is at the instance of the plaintiff in the suit challenging the judgment dated 29/1/1998 passed in CS No.25-A/1984 dismissing the suit. The cross objection has been filed by the defendant No.1 in the suit challenging the findings recorded by the trial court.

2. The undisputed facts are that Chandmal and Kanakmal were real brothers. The plaintiff Manakbai w/o. Babulal is the daughter of Chandmal and the original defendant No.1 Manakbai is the wife of Kanakmal whereas defendant No.2 and 3 namely Sirubai and Kantabai were the daughters of Kanakmal. It is also not in dispute that on the death of Chandmal his wife Kanchanbai became his sole legal heir and since Chandmal had no issue, the plaintiff even after her marriage was residing with Kanchanbai.

3. For convenience the parties are referred in the judgment as per their original position in the suit as Plaintiff and Defendants.

4. The plaintiff had filed the suit with the plea that the suit property was ancestral property of Chandmal and Kanakmal and family settlement between them was arrived at on 19/7/1946 in which the suit shop and other properties were received by Chandmal and other properties were received by Kanakmal. After the settlement it was recorded in the khata of Chandmal and Kanakmal, signed by all the concerned parties. Chandmal had died in 1952, therefore, the suit shop was inherited by his wife Kanchanbai. Kanchanbai had executed the will dated 18/10/1986 in respect of the suit shop and other properties in favour of the plaintiff. Kanchanbai had died in 1973 and thereafter the plaintiff had became the sole owner of the suit shop. Further plea was taken that after the death of the plaintiffs father Chandmal, since Kanchanbai had become widow, therefore, Kanakmal was given the right to maintain the account and Kanchanbai had given the suit shop on rent to Moolchand. Since the dispute had arisen between the parties, therefore, the present suit was filed.

5. Deceased defendant No.1 Manakbai widow of Kanakmal had filed the written statement denying the plaint averments and taking the plea that the suit shop was of the ownership in possession of Kanakmal, the husband of defendant No.1. Kanakmal had died on 24/7/1995, therefore, the defendant No.1 had become its owner and that the plaintiff cannot set up the title without getting probate of the will of Kanchanbai. Further plea was raised that the suit shop was never in possession of the plaintiff and it was let out by Kanakmal to Moolchand and that Kanakmal as owner of the suit shop was receiving the rent. A plea was also raised that since the defendants are in continuous possession of the suit property without any hindrance, therefore, they have perfected their title by adverse possession.

6. The defendant No.2 and 3 had remained ex-parte before the trial court.

7. The trial court by permitting the parties to lead evidence and after examining the same had found that the suit property was ancestral property in the hands of Chandmal and Kanakmal. It was further found that a family settlement between Chandmal and Kanakmal had taken place on 19/7/1946 and in that family settlement, the suit shop had fallen in the share of Chandmal and he had received its possession. It was also found that the family settlement was recorded in the ' Chopda' (account) of Surajmal and Chandmal. It has also been found that after the death of Chandmal in 1951 his wife Kanchanbai became the owner of the suit shop, but her possession on the suit shop was not established as the suit shop was found to be in possession of the tenants. The trial court further found that Kanchanbai had executed the registered will in favour of the plaintiff and after death of Kanchanbai, plaintiff became the owner of the suit shop, but she was not found to be in possession as the possession was found with the tenant. The defendants could not prove their plea of adverse possession. The trial court, though, found the plaintiff/ap