Sunder Kishanrao Jadhav And Anr vs Shamptrao Mariba Nisrgandha And ...
2015 Latest Caselaw 245 Bom

                                                                 SA No. 106/11
                                          1


                      IN THE HIGH COURT AT BOMBAY




                                                                          
                  APPELLATE SIDE, BENCH AT AURANGABAD

                           SECOND APPEAL NO. 106 OF 2011




                                                  
                                         WITH
                          CIVIL APPLICATION NO. 3135 OF 2011

     Sunder s/o. Kishanrao Jadhav




                                                 
     and Ors.                                     ....Appellants.

                      Versus

     Shamptrao s/o. Mariba Nisrgandha




                                       
     and Ors.                                     ....Respondents.
                             
     Mr. J.M. Murkute, Advocate for appellants.
     Mr. B.S. Kudale, Advoate for respondent No. 3.
                            
                                        CORAM : T.V. NALAWADE, J.
                                        DATED : 27th August, 2015.
      

     ORDER :

1) The appeal is filed against judgment and order of

Regular Civil Appeal No. 148/2004 (Old No. 117/02), which was

pending in the Court of Ad-hoc District Judge-1, Majalgaon and

also against the judgment and decree of Regular Civil Suit No.

277/1994 which was pending in the Court of Civil Judge, Junior

Division, Majalgaon. The suit filed by the present appellants for

relief of declaration and temporary injunction is dismissed. Both

the sides are heard.

2) The suit was filed in respect of 4 Acre portion (1

Hector 21 R.) out of Survey No. 182 (Gat No. 488) situated at

SA No. 106/11

village Talkhed. It is the case of plaintiffs that Mariba, the father

of defendant Nos. 1 to 5, was holding the property and it was

joint family and ancestral property. It is contended that Mariba

was Karta of the joint Hindu family and in that capacity and for

legal necessity, Mariba sold the suit property to the plaintiffs.

3) It is the case of plaintiffs that defendant Nos. 1 to 3

had filed a collusive suit against the father which was bearing

No. 100/1979 and they obtained decree of partition against

Mariba and that was done only to deceive the appellants. It is

contended that in view of the rights given to the plaintiffs, it is

not necessary to challenge the decree given in favour of

defendants in partition suit. It is contended that the sale deed

was executed on 11.12.1981 and on the date of the sale deed,

the possession of the suit property was given to the plaintiffs by

Mariba. It is contended that the plaintiffs have taken a well in

this land and has installed electric motor for irrigation of the land

and he has developed the property. It is contended that on the

basis of sale deed, mutation is effected in favour of the plaintiffs

in revenue record.

4) It is the case of the plaintiffs that defendants, the

successors of Mariba have no concern whatsoever with the suit

property. It is contended that Mariba was entitled to have share

SA No. 106/11

in aforesaid survey number and so that share is purchased by

the plaintiffs. Relief of declaration was claimed that plaintiffs are

joint owners and they are in possession of the suit property and

declaration was claimed that the decree of Civil Suit No. 100/79

is not binding on the plaintiffs. Relief of injunction was claimed to

prevent the defendants from interfering in the possession of

plaintiffs over the suit property.

5)

The defendants filed joint written statement and

contested the matter. They contended that Mariba was not the

Karta of joint family and defendant Nos. 1 to 3 were living

separate from Mariba for about 30 years. It is contended that as

Mariba was not effecting partition of the suit property amongst

sons, suit No. 100/79 was filed for relief of partition and separate

possession of respective shares.

6) It is the case of defendants that defendant Nos. 1 to

3 were living out of station for many years due to their

occupation and the plaintiffs deceived Mariba and got executed

the sale deed in respect of the suit property. It is contended that

the decree in partition suit has become final and as the suit

property was shown to be purchased during the pendency of the

suit, plaintiffs do not get any right in the suit property. It is

contended that for execution of the decree given in partition

SA No. 106/11

suit, execution proceeding is already filed and only to protract

the execution of the decree, the suit is filed. The execution

proceeding is bearing No. 26/1984.

7) It is the case of plaintiffs that partition had not taken

place amongst the co-parceners of the suit property and so,

Mariba had no right to sell any separate portion of the land. It is

contended that no consideration was paid to Mariba by plaintiffs

and dividing the land and giving separate possession to the

plaintiffs will be against the provisions of the Bombay Prevention

of Fragmentation and Consolidation of Holding Act. It is

contended that there was no necessity of any kind to Mariba as

he was getting more than sufficient income from agriculture and

he was cultivating all the lands of the family. It is contended that

only when the measurement of the property was started in

execution proceeding No. 26/1984, the suit came to be filed and

it shows the malafides of the plaintiffs.

8) Issues were framed by the trial Court. Both the sides

gave evidence. The trial Court has held that the plaintiffs have

failed to prove their ownership over the suit property. The trial

Court has also held that the plaintiffs have failed to prove that

there was legal necessity for selling the suit property. The trial

Court has held that the decree in R.C.S. No. 100/79 is binding on

SA No. 106/11

the present plaintiffs and the trial Court has held that the sale

deed executed in favour of plaintiffs is hit by the provisions of

lis-pendence.

9) It appears that in the appellate Court, no specific

points were framed. Much was argued by the learned counsel for

the appellants on this point and he submitted that substantial

question of law needs to be framed on this point of procedure.

The judgment delivered by the first appellate Court however

shows that all the relevant points which could have been framed

by the appellate Court on the issues decided by the trial Court

were considered by the appellate Court and they are answered

against the plaintiffs.

10) The learned counsel for the plaintiffs submitted that

this Court, other Hon'ble Judge, had made an order on

24.11.2014 and had directed to District Court to ascertain as to

whether the property shown to be sold to the plaintiffs can be

protected and equity can be done and the rights of the plaintiffs,

acquired by them under the aforesaid sale deed, can be

protected and the area which is in possession of the plaintiffs at

present can be allotted to them by presuming that it was the

share of Mariba. The learned counsel submitted that on this

point also, substantial question of law can be formulated.

SA No. 106/11

11) The suit was filed for partition and separate

possession in respect of 2 agricultural lands. Agricultural land

bearing Gat No. 488 having area of 14 Hector 16 R. (around 35

Acres) and another property bearing Gat No. 64 admeasuring 7

Hector 10 R. The suit in respect of both suit properties is decreed

and plaintiffs of Regular Civil Suit No. 100/79 are given 3/4th

share together in these two properties. This decree has become

final. It appears that prior to the date of suit, some transactions

were made by Mariba and some portions were sold to other

persons and on the date of the sale deed, portion of around 16

Acres was in possession of Mariba. On the basis of this

circumstance and as the purchasers were not made party to the

suit, the learned counsel for the plaintiffs/appellants submitted

that equal share needs to be given to Mariba, in the land which

was available with Mariba. This submission is not at all

acceptable. The main reason is that the plaintiffs purchased the

suit property during the pendency of the partition suit. Even

cross examination of the plaintiff shows that plaintiffs were

aware on the date of sale deed that such suit for partition was

filed against Mariba. Plaintiffs gave evidence that Mariba had

represented to them that partition had taken place and his sons

had no concern whatsoever with this land. In the plaint itself, it is

admitted that it was ancestral property of Mariba. In view of

SA No. 106/11

these circumstances, it is not open to plaintiffs to say that they

are entitled to equity and the portion sold by Mariba to them can

be kept with them. Only because, they were not made party

after the date of purchase, they cannot say that they are entitled

to equity. There is a decree of partition and from Gat No. 488,

from total area of Gat No. 488, the defendants are held to be

entitled to 3/4 share. In view of these circumstances, it can be

said that nothing was left with Mariba for selling to the present

plaintiffs.

12) The provision of section 52 of Transfer of Property Act

need to be kept in mind. When present plaintiffs were knowing

that suit was pending for partition and they were also knowing

that present defendants had equal share with Mariba in the

property and they were claiming their share from the entire area

of land Gat No. 488, it can be said that without obtaining

permission of Court, they had taken the risk. In such cases, the

principle of equity cannot be used in favour of purchaser.

Further, there is finding of the first appellate Court that passing

of consideration is not duly proved. The first appellate Court has

appreciated the evidence of one witness examined by the

plaintiffs on execution of sale deed.

13) When this Court, other Hon'ble Judge, had asked the

SA No. 106/11

District Court to ascertain as to whether equity can be done,

District Judge considered the material and has given finding that

it is not possible to do equity. Though reasons given are

different, this finding needs to be accepted as it is. The plaintiffs

are not entitled to get anything in view of the aforesaid

circumstances. This Court finds nothing on the basis of which

substantial question of law can be formulated. No such question

is involved in the present matter.

14) In the result, the appeal stands dismissed. Civil

Application stands disposed of.

[ T.V. NALAWADE, J. ]

ssc/