NABU Vs. GANI

JUDGEMENT

(1.) THIS is an appeal by defendant No. 2 against the judgment: t and decree of the learned District Judge, Bikaner dated November 7, 19,70 whereby the appeal of the present appellant against the judgment and decree of the, learned Civil Judge, Ratangarh dated May 19, 1967 was dismissed and the decree passed by the learned Civil Judge in favour of the plaintiff -respondent Gani for possession of the disputed Guwari, for injunction and for compensation of Rs. 50/ -was maintained.

(2.) THE plaintiff Gani instituted a suit for possession in, respect of the disputed1 'Guwari', alleging himself to be the owner thereof. It was averred that the disputed Gawari belonged to his grand -father Kadarkhan. Kadarkhan had no male issue. Kndarkhan's brother Hussainkhah's son Idukhan went in adoption to Kadarkhan. Kadarkhan had a daughter Goga. The plaintiff Gani is the son of Idukhan. Smt. Goga became widow in her young age, so she left her in -laws place Darasar and started living at Rajaldesar with her brother Idukhan. It was stated that Smt. Goga lived in the 'Gawari' from S.Y. 1970 till her death in S.Y. 1981 and plaintiffs' father Idukhan died in the St. Year 2000. In the settlement of S.Y. 1979 -80, the 'Gawari' was recorded in the name of Smt. Goga. There was one 'zhupa' and a kachha 'sal' in the 'Gawari'. The 'sal' fell down some 6 -7 years back during the rains. The plaintiffs' case is that Mst. Halima wife of the appellant, was the Vice -Chairman of the Municipal Board. The defendant No. 2 husband of Halima was put into possession of the 'Gawari' on 25 -11 -J 964. The plaintiff was forcibly dispossessed from the 'Gawari' by the defendant No. 1, representing that patta, has been granted to defendant No. 2 Nabu. It was all done illegally by misuse of office or the authority. The plaintiff also claimed to be the owner of the 'Gawari' by adverse possession.

(3.) THE defendant No. 2 in his written statement, admitted that Idukhan was the plaintiffs' father. It was also admitted that Mst. Goga lived in Mohalla Dhobiyan after erecting a 'Gawari' in the S.Y. 1979 -80 and that she died in the S.Y. 1981. It was denied that Idukhan or the plaintiff lived in her 'Gawari'. The adoption to Idukhan was denied. The defendant No. 2 alleged that in the land, which was in possession of Mst. Goga in her life time, in which she had erected a 'Gawari' the defendant started living in the northern portion thereof soon after the death of Mst. Goga and the defendant No. 2 also erected a 'Gawari' for his residence. The defendant No. 1 Municipal Board had executed the sale -deed on 16 -5 -1962 in favour of defendant No. 2 in respect of that land on the basis of his old possession. His wife had no hand in the matter. It was stated that, the plaintiff was never in possession of that land, so the question of dispossession did not arise. The plaintiff trespassed over the adjoining land on the northern side of his land and put up a jhunpa there, That encroachment was removed by the defendant No. 1.