Shri Upi Ganpat Joshi vs Shri Vaikunt Ganpat Joshi

N.A. Britto, J.—Heard learned Counsel on behalf of both the parties. This is plaintiff''s Second Appeal arising from RCS No. 79/2000.

The dispute between the plaintiff and the defendant, who are brothers is as regards the part of the house bearing no. 16/602 situated in plot ''A'' which forms part of Survey No. 3/1 which originally belonged to the parents of the plaintiff, the defendant, the other brothers and sisters.

The suit house was constructed in plot ''A'' in the year 1980 or thereabout when the father of the plaintiff and the defendant was living. There is no dispute that the electricity connection, water connection, etc. in respect of the said house stand in the name of the father of the plaintiff and the defendant. The plaintiff has another house constructed in the same plot which according to the plaintiff was constructed in the year 1999 or thereabout. After the death of the father of the plaintiff and the defendant, plot ''A'' came to be purchased by 5 brothers including the plaintiff and the defendant, in 1/5th share. In other words, all the 5 brothers are now the owners of the undivided plot ''A'', each of them having a right of 1/5th share. The plaintiff filed the suit with the allegation that he was occupying two bedrooms in the said house which he has converted into the store rooms and was in possession of the same with electrical items kept therein till about 13/05/2000, when the plaintiff was obstructed from entering the suit house by a watchman instructed by the defendant. There is no dispute that the remaining part of the house is in the occupation of the defendant.

After the issues were framed, the plaintiff examined himself, while the defendant chose not to step in the witness box. Issue no. 3 framed by the trial Court dealt with the claim of the plaintiff that he had invested about Rs. 5 lacs for the construction of the suit house. Issue no. 5 dealt with the claim of the defendant that the suit property was held in common except the house built therein, which was exclusively enjoyed by each of the brothers. The learned trial Court concluded that since plot ''A'' stood in the joint name of the plaintiff, the defendant and the other brothers and the suit house as it stood in the name of the father of the plaintiff and defendant, it showed that the suit house was owned by the plaintiff. Certainly, it was not the case of the plaintiff that since the suit house was registered in the name of the father of the plaintiff that the suit house was built by his father and, as such, belonged to all the 5 brothers and their sisters. On the contrary, it was the case of the plaintiff, as rightly taken note of by the learned first appellate Court, in para 8 of the plaint that the plaintiff was co-owner of the suit house as the plaintiff claimed to have contributed Rs. 5 lacs for the construction of the suit house which was constructed in the year 1979-80 by the plaintiff and the defendant. In other words, the claim of the plaintiff was that the suit house was constructed by the plaintiff and the defendant and not by their father.

The learned first appellate Court referred to the case of Sri Chand Vs. Inder and Others, to say that the burden of proof was on the plaintiff and it was for the plaintiff to establish his case by cogent evidence and the witness of the defendants cannot strengthen the case of the plaintiff who must succeed by establishing his own case and held that the plaintiff had failed to prove that the plaintiff was the co-owner of the suit house. The learned first appellate Court also held that the conclusion arrived at by the learned trial Court because the suit house had stood in the name of the father of the plaintiff and the defendant, that the plaintiff became the co-owner of the house was erroneous.

Shri Amonkar, the learned Counsel on behalf of the plaintiff submits that the Court had framed several issues and the findings of issue no. 3 as well as 5 had to be considered together before coming to a final conclusion. Counsel on behalf of the defendant submits that the suit was dismissed based on admissions and therefore there is no question of any interference with the judgment of the learned first appellate Court.

As already stated, the suit property plot ''A'' belongs to all the 5 brothers in which 3 of them have their respective houses including the suit house, part of which is being claimed by the plaintiffs, the plaintiffs having pleaded that it was jointly constructed by the plaintiff and the defendant. Merely because the suit property was jointly owned by the 5 brothers was no indication to conclude that the suit house belonged either to 2 of them or 5 of them. The plaintiff had taken this plea that he was entitled to occupy the said rooms in the house, otherwise occupied by the defendant with the allegation that the said house was constructed jointly by the plaintiff and the defendant. Having failed to prove the said plea, there was no other option for the learned first additional District Judge then to dismiss the claim of the plaintiff. The learned first appellate Court has also given a finding that there was nothing in the evidence led by the plaintiff that the said two rooms were in his possession by way of storage of electrical goods by the plaintiff. Considering the facts of the case and the findings given thereon by the learned first appellate Court, the questions framed by the plaintiff, as substantial questions of law, do not at all arise in this second appeal. Consequently, the second appeal is hereby dismissed.