Decided on August 09,1979



M.K.SHAH - (1.) This appeal filed by original defendant No. 1 who died during the pendency of the suit and whose heirs viz. defendants Nos. 1(1) to 1(4) were brought on record is directed against an order passed by the lower appellate court in regular civil appeal No. 121 of 1976 of the court of the learned District Judge Bulsar at Navsari dismissing the appellants appeal and confirming the decree of the trial court in respondent No. 1s suit being regular civil suit No. 6 of 1972 which was decreed by the learned Civil Judge (Junior Division at Gandevi by his judgment and order dated 25th September 1976 declaring that the plaintiff and deceased defendant No. 1 each had one half share in the suit houses and appointing a Commissioner for making partition and ordering the drawing of a preliminary decree accordingly. ... ... ... ... ... ...
(2.) Mr. D. D. Vyas the learned Advocate appearing for the appellants was not in a position to substantiate the case of the defendants with regard to ownership of the suit properties by virtue of the alleged oral gift by deceased Chhiba in favour of defendant No. 1. As rightly held by the courts below no such immovable property of the value of Rs. 100.00 and upwards can be transferred by an oral gift. Both the courts have also on evidence given a concurrent finding that there was no material on record to justify a conclusion that any such oral gift was made by Chhiba in favour of deceased Bai Kunver and in a second appeal therefore this court would be most reluctant to disturb that finding.
(3.) But Mr. Vyas contends that in view of the fact that admittedly from prior to the death of the deceased defendant No. 1 was in possession of the suit properties to the exclusion of the plaintiff the defendants acquired an interest in the properties by adverse possession. Now in order to succeed on a plea of adverse possession the defendants have to establish that she (defendant No. 1) claimed a title hostile to the real owner and in case of coowners ouster will have to be proved. After the death of the deceased the property according to Hindu law of succes sion would devolve on the plaintiff and defendant No. 1 as the heirs of the deceased as the third daughter of the deceased viz. Bai Somi bad predeceased Chhiba and therefore the heirs who survived deceased Chbiba in the year 1943 when he died were the plaintiff and defendant No. 1. Defendant No. 1 was staying at that time with the deceased and her continuance in possession therefore unless there is some overtract constituting open ouster of the other coowner would not ripen into any title on her by way of adverse possession.;

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