Bhutt, J.@mdashThis is plaintiff''s appeal from the decree dismissing their suit for possession.
2. The following genealogy would facilitate the understanding of the case;
Kali Prasad
(d. 1910 A.
D.)
Prabhunath Awadhbiharilal Kunjbiharilal
(d. 1938) (d. 21-7- d. 7-1-
1947) 1927)
Tukaram
(deft. 1)
PadumnathBansilalMohanlal Babulal S. 5 S. 6
(deft. 2) (deft. (deft. 4) (deft. 5)(not
3) impleaded)
Gauribai Umabai Annapurnabai
(Plff. 1) (Plff. 2) (deft. 6)
Tukaram, defendant No. 1, is dead and is represented in this appeal by his widow and sons, respondents 1 (a) to 1 (e).
3. It is not disputed that Kall Prasad had built a house in Ramaiyapura Jagdalpur, in the year 1908. It consisted of three blocks, the southern block
being in possession of Kunjbiharilal. Plaintiffs alleged that Kali Prasad had divided the house between his sons and accordingly the southern block
was the exclusive property of Kunjbiharilal. This plea was accepted by the trial Court but was negatived in appeal. The finding of the lower appeal
court whether there was partition of the house between the sons of Kali Prasad is one of fact. It cannot, therefore, be questioned in second appeal.
Plaintiffs'' claim to that house, therefore, cannot be entertained.
4. The other house in dispute is situate in Gangamunda, Jagdalpur. Plaintiffs claimed that this house was built by Kunjbiharilal with his separate
earnings and accordingly formed his exclusive property. Ex, P. 5 is an extract from Ground-rent Register of the Jagdalpur Town Committee, which
shows that right from the year 1920 to 1927, when Kunjbiharilal died, the house was recorded in his name as owner. All the plaintiffs'' witnesses
have testified to the fact that this house was built by Kunjbiharilal. Even the defendants'' witness, Loknath (1-2. D.W. 2) admitted that the house
was constructed by Kunjbiharilal after acquiring the plot from the State. The lower appeal Court was, therefore, obviously mistaken in surmising
that Kunjbiharilal might have only supervised the construction, Loknath further said that Kunjbiharilal had borrowed money from the State for the
construction of this house. The mere fact that he could not give the details of the loan did not justify the lower appeal court to discredit his
evidence. Apart from whether he bad raised money for construction of the house, Kunjbiharilal obviously was an earning member and was,
therefore, likely to have funds of his own for acquiring the site and constructing the house. It would appear from the evidence of defendant No. 1
Tukaram (P.W. 21) that Awadhbiharilal also bad built a house in Ramaiyapura in 1931, which was his exclusive property. It thus appears that after
the death of Kali Prasad, although the brothers were joint they were earning separately and acquitted separate property as exclusive owners. The
lower appeal Court has not given a clear finding as to who had constructed the house in suit. The trial Court has discussed this question, and also
the source of money, elaborately in its judgment, and its finding is supported by the bulk of evidence and probabilities of the case. Therefore, the
finding of the lower appeal Court, which is perfunctory and conjectural, cannot be accepted.
5. Since the house was recorded in the exclusive name of Kunjbiharilal in public records during his lifetime, it ostensibly belonged to him. In
Mahadeo Appa vs. Sadasheo (First appeal No. 73 of 1949, decided on 12-9-1956), it was held by a Division Bench of this Court, to which I
was a party, that a member of a joint family is not burdened with any presumption that the property in his possession is joint family property and it
is for the party, who alleges that it is joint family property, to establish the existence of such ancestral property as may have formed a sufficient
nucleus for the acquisition: See also Shrinivas Krishnarao Kango vs. Narayan Devji Kango (1955) I.S.C.R. 1. Therefore, it was for the defendants
to prove the existence of an ancestral property which could have formed a sufficient nucleus for the acquisition of the house. All that appears on the
record is that Kali Prasad had left only a house in Ramaiyapura. This house, however, could not have yielded any income as it was used by the
family itself for residence in these circumstances, it must be held that the house was the self-acquired property of Kunjbiharilal.
6. This house was sold by defendants Nos. 1 to 5 to defendant No. 7 who is respondent No. 7 in this appeal. He claimed to be a bona fide
purchaser without notice of the plaintiffs'' title. This contention was negatived by both the Courts below. It is apparent that bad defendant No. 7
only looked into the previous records of the Town Committee, he would have come to know of Kunjbiharialal''s ownership of the house. He must,
therefore, be deemed to have notice of the title of his beaks The finding of the Courts below was accordingly correct and is confirmed.
7. The question then is whether the plaintiff; have title to the house. In this connection their plea was that their mother remarried Shivnath (P.W. 1)
after the death of Kunjbiharilal and had, therefore, lost her right to the house. Defendants Nos. 1 to 6 had, in para 2 of their written statement,
admitted her remarriage. So far as defendant No. 7 is concerned, be had not specifically denied it. Shivnath as also Radhamani (P.W. 17), have
testified to her remarriage. It is no doubt true that Radhamani described herself as his ''kept wife''. This dose not, however, mean that she had not
the status of a legally married wife, ''the word kept was evidently intended only to distinguish a it remarried widow from one who is married which
vargin.'' In these circumstances'', the lower appeal Court was evidently mistake a in holding that her remarriage was not proved. The trial Court has
discussed this question in detail in its judgment and its finding in favour of the remarriage is accordingly restored.
8. The lower appeal Court was again mistaken in questioning the validity of the marriage on the ground that the parties were not members of the
same castes. This question was not raised in the pleadings and could not be taken up for consideration. It is true that Radhamani P.W. 17 said that
Shivnath P.W. 1 was not a Kayastha. This was, however, only a casual statement coming from an ignorant woman and has no value when no
question on the point was put to Shivnath himself while he was in the witness-box. In these circumstances, the trial Court was right in holding that
the title to the house vested in the daughters of Kunjbiharilal after the remarriage of their mother.
9. There is no evidence on record that the title of the plaintiffs was denied by the defendants at any time. On the other hand, it would appear from
the letter of Awadhbiharilal dated 8th May 1944, Ex. P-10, that he had admitted the right of the plaintiffs. Similarly, his son Tukaram, defendant
No. 1 had, in his letter Ex. P-8 dated 25-7-1946, stated that he had no objection to hand-over the house to them. The plaintiff''s title to the house
was, therefore, never disputed. The suit is clearly governed by Art. 144, Schedule I of the Indian Limitation Act, and as it was instituted within 12
years from the date when a hostile title was first asserted in 1947, it is within limitation.
10. The house in question is doubtless owned by the plaintiff''s (sic) with their sister Annapurnabai, defendant No. 6. As co sharers, however, they
are entitled to eject trespassers from the entire house. The appeal accordingly partly succeeds. The decree of the lower appeal Court is set aside
and it is directed that the defendants do place the plaintiffs in possession of the house situate at Gangamunda, Jagdalpur. Defendants shall suffer
their own costs throughout and pay those of the plaintiffs in all the Courts in proportion to success. Rest of the costs shall be borne by the plaintiffs.
