Bombay High Court
Sopan Namdeo Gavli vs Dagdu Nagnath Kasar And Others on 4 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
918 SECOND APPEAL NO.324 OF 2014
WITH
CIVIL APPLICATION NO.15 OF 2014
SOPAN NAMDEO GAVLI
VERSUS
DAGDU NAGNATH KASAR AND OTHERS
...
Mr. R.P. Adgaonkar, Advocate for the appellant
Mr. A.R. Devakate, Advocate for the respondent No.1
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 04th AUGUST, 2021.
ORDER :
1 Present appeal has been filed by the original defendant No.3
challenging the Judgment and Decree passed in Regular Civil Appeal
No.266/2007 by the learned Principal District Judge, Osmanabad on
23.04.2013, thereby allowing the appeal in part and reversing the decree
passed in Regular Civil Suit No.416/2000 by learned 2nd Joint Civil Judge
Junior Division, Bhoom, Dist. Osmanabad on 24.10.2007.
2 Present respondent No.1 had filed the said suit for declaration,
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partition and separate possession. Original defendant No.1 was the father of
the plaintiff and original defendant No.2 is the brother of the plaintiff. It is
an admitted position that original defendant No.1 executed sale deed in
respect of suit property on 26.05.1992 in favour of defendant No.3. Plaintiff
contended that there was no necessity for his father to sale the land and
when the suit property was the ancestral property, father had no authority to
sale the entire land.
3 Defendant Nos.1 and 2 had not filed written statement.
Defendant No.3 i.e. present appellant filed the written statement and
submitted that defendant No.1 had executed the sale deed in his favour for
legal necessity. He was in need of money for the purpose of marriage of his
daughter and education of the grandsons as well as for his business.
4 After the evidence was led by the rival parties, the learned Trial
Judge has come to the conclusion that defendant No.3 had proved that he
purchased the suit land from defendant No.1 for legal necessity, and
therefore, the plaintiff is not entitled for partition and separate possession.
5 Plaintiff filed the appeal and after hearing both sides the learned
Principal District Judge, Osmanabad held that the suit lands were ancestral
and defendant No.1 had not sold the suit land for legal necessity. The said
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sale deed is not binding on the share of the plaintiff, and therefore, the
plaintiff is entitled to get 1/3rd separate share. Now, the defendant No.3 has
filed this appeal.
6 Heard learned Advocate Mr. R.P. Adgaonkar for the appellant and
learned Advocate Mr. A.R. Devakate for the respondent No.1.
7 At the outset, it can be seen that both the Courts have given
contrary findings in respect of legal necessity. Another fact to be noted is that
the sale deed was executed in the year 1992; yet, the suit has been filed in
the year 2000. Though the suit might be within limitation in view of the fact
that the relief of partition has been added; yet, it has come on record that
there was another suit that was filed against the father i.e. Regular Civil Suit
No.4/1993. When these facts had come, the learned Trial Judge has
observed that it is hard to believe that the sons would not have had any idea
about the execution of the sale deed. Even a correction deed has been
executed later on by Nagnath in favour of defendant No.3. It also appears
that the learned Trial Judge at one point of time has observed that he is
holding that defendant No.3 has failed to prove that Nagnath executed the
sale deed in his favour for legal necessity; yet, he went on to say that the
defendant No.3 has proved that he is a bona fide purchaser for value without
notice. Now, as regards, whether defendant No.3 can be held to be bona fide
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purchaser, is concerned, the learned Principal District Judge, Osmanabad has
not framed any specific point, and therefore, it requires consideration in this
Second Appeal. Second Appeal, therefore, stands admitted. Following are
the substantial questions of law.
1 Whether there was legal necessity for defendant No.3 to
execute sale deed dated 26.05.1992 in respect of suit property
in favour of defendant No.3 ?
2 Whether defendant No.3 can be said to be a bona fide
purchaser for value without notice ?
3 Whether plaintiff was entitled to get partition and
separate possession ?
4 Whether interference is required ?
8 Interim relief, if any, to continue.
( Smt. Vibha Kankanwadi, J. )
agd
