DATTATRAYA Vs. RANGNATH GOPALRAO KAWATHEKAR DEAD

JUDGEMENT

(1.) Defendant No. 2 in the suit from which this appeal arises is the appellant before this Court. The plaintiffs sued for the possession of the suit properties on the basis of their title. Their case was that defendant No. 1 Dagaduba, who was the owner of the suit properties sold the same to the plaintiffs on January 12, 1952; but some of the defendants had trespassed on those properties and hence they were constrained to file the suit. The suit was filed on February, 14, 1953.

(2.) The first defendant in his written statement pleaded that the suit properties originally belonged to his family; there was a division in the family between himself and his brother, the second defendant; in that division the suit properties fell to his share; thereafter he became the absolute owner of the same and he mortgaged the same to the plaintiffs. But later he changed that version and admitted that he sold the suit properties to the plaintiffs. The second defendant admitted that the suit properties originally belonged to his family. He also admitted that there was a partition in his family but his case was that as a result of that partition, the suit properties fell to his share and that he was in possession of the same. He denied that his brother had any right to alienate the suit properties or in fact he had alienated the same.

(3.) The two primary questions that arose for decision before the trial court were (1) whether in the partition in the family of defendants 1 and 2, the suit properties fell to the share of the first defendant or the second defendant and (2) whether the first defendant had sold the suit properties to the plaintiffs. The trial court decided both these questions in favour of the plaintiffs and decreed the plaintiffs' suit. In appeal the learned District Judge held that the suit properties belonged to the joint family of defendants 1 and 2 and that it had never been partitioned. He further came to the conclusion that the sale put forward by the plaintiffs has not been established. The High Court reversed the decree of the first appellate court and restored that of the trial court. Thereafter this appeal has been brought after obtaining special leave.