KASHINATHLAXMANRAO GHATE Vs. KISANRAMAJI KHANKE

JUDGEMENT

(1.) THE appellant is the original plaintiff and the respondent is the original defendant. This second appeal has been filed by the original plaintiff challenging the Judgment and Order passed by the trial court dismissing his suit, which order has been confirmed by the District Court by dismissing the first appeal filed by him. The second appeal was admitted on 12th September, 1991 and the following order was passed : "heard Shri Manohar. Admit. The substantial question of law which arises for decision is point no. 1 in the memo of appeal. "

(2.) BRIEF facts are as under : The appellant-original plaintiff had filed a suit for possession of the suit property which consisted of Room No. 518. It is the case of the plaintiff in the plaint that Lahanubai Paikaji Wairagade had taken the said plot from Chandrapur Municipal Council as a tenant and she had constructed a tin shed on the said plot and she continued to be in possession till her death in the year 1952-53. Her son Shrawan predeceased her and the plaintiff Kashinath was the son of Lahanubais daughter, who was living all along with Lahanubai till her death and continued to live in the suit premises. It is the case of the plaintiff that after the death of Lahanubai he being the only heir of Lahanubai became owner of the suit property. His name was mutated as a tenant in Municipal Council record in respect of the suit property in the year 1956. It is the case of the plaintiff that the defendant was in need of some premises and, therefore, he gave the suit property in his possession for a temporary period as his licensee in the year 1970. It is the case of the plaintiff that he demanded the possession several times, however, defendant did not return back the possession and, therefore, by notice dated 22. 1. 1979, he demanded possession from the defendant and since it was not given, he filed the suit for vacant possession of the suit property.

(3.) THE respondent-original defendant had filed his written statement and challenged the plaintiffs right, title or interest over the suit property and he claimed to be the owner of the suit property, firstly by virtue of purchase of suit property for a consideration of Rs. 10,000/- and alternatively, by virtue of having perfected his title by adverse possession. It was his case that he was in possession of the suit property as a owner for more than 13 years openly, continuously and without any interruption and, therefore, he had perfected his title. He further claimed that the original lease in favour of the plaintiffs predecessor was void and illegal and, therefore, the plaintiff could not acquire any right, title or interest in the suit property. His alternate plea was that since the lease was forbidden under the Municipal Act, the plaintiffs predecessor at the most could be treated as a licensee and that since the property was transferred against the provision of law, the plaintiff could not establish his claim.