JAGDEV DAULATA MAHADIK Vs. GOVINDRAO BALWANTRAO

JUDGEMENT

(1.) These appeals arise out of two suits Nos. C. S. 27 of 1952 and C. S. 190 of 1952 on the file of IInd Joint Civil Judge (J. D.) Satara. A brief history of the facts leading to this litigation is necessary for a proper understanding of the issue in the case. Narayanrao father of Durgabai and Govindrao were brothers and owned suit properties which were held by them as joint family property. As Narayanrao ahd borrowed monies from various persons those creditors filed suits against him and got the joint family properties attached. Govindrao naturally objected and wanted that attachment to be made enforceable only against the share of Narayanrao. Accordingly only one half share of Narayanrao was put up for sale. Even before the half share was brought to sale. Govindrao filed suit O.S. No. 313 of 1923 against Narayanrao for partition of the joint family properties and for separate possession of his half share. On October 26, 1923. Narayanrao's half share in 'A' Schedule properties was purchased by one Narasingarao who was Mukhtyar of Govindrao. On April 20, 1924 symbolic possession was obtained by Narasingaroa of that half share. On July 1, 1925, by a 'registered saleded Narasingaro sold the half share of Narayanarao in 'A' Schedule properties which he had purchased to Govindrao for Rs. 16,000/-. In O. s. 313 of 1923 filed by Govindrao for partition a preliminary decree was passed on August 24, 1925. It may be stated that after the purchase of the half share of Narayanrao's property in the auction sale in the creditors' suits, Govindrao did not amend his plaint mentioning about the subsequent sale of Narayanrao's half share in favour of Narasingarao and his purchasing that half share from Narasingarao.

(2.) After the preliminary decree was passed, Narayanrao died leaving behind him his widow Laxmibai and his daughter Durgabai. They were brought on record. In 1932 the widow Laxmibai died and thereafter Durgabai was the sole legal representative of Narayanrao. In 1941 a final decree was passed and later in execution proceedings Govindrao's half share was separated by metes and bounds and he was put in possession of 'B' Schedule properties situated in Ninam and Kausawade. He also obtained mesne profits through the Court. In so far as Narayanrao's half share was concerned his separate share was shown in 'C' Schedule to that suit. Since some confusion may be created, because in the suits out of which these appeals arise also there is a 'C' Schedule, that Schedule will hereinafter be referred as the suit 'C' Schedule. To continue the narrative, out of nine properties that were sold by Durgabai, two were sold to Raoji Satwaji Mahadik being items 1 and 7, and the other seven properties were sold to Raoji Satwaji Mahadik and seven other persons. Out of Narayanrao's share which was purchased by Govindrao he sold R. S. Nos. 172/1 and 172/2 for Rs. 2,000/- to one Bali Mahadu Jadhav. Inasmuch as Durgabai was exercising the right in respect of Suit 'C' Schedule properties in the partition suit, which in fact were ultimately purchased by Govindrao, Govindrao filed C. S. No. 27 of 1952 in respect of items (1) and (7) of suit C Schedule properties and Bali Mahadu Jadhav filed C. S. No. 190 of 1952 in respect of R. S. Nos. 172/1 and 172/2 The case of Bali Mahadu Jadhav was similar to that of Govindrao in C. S. No. 27 of 1952 and the reliefs asked for in both the suits were for possession and for awarding mesne profits of the Suit 'C' Schedule properties. In C. S. No. 27 of 1952 Durgabai was defendant No. 1 and the purchasers were defendants Nos. 2 to 9, but in C. S. No. 190 of 1952 the same defendants as in c. S. No. 27 of 1952were shown as defendants 1 to 8, because they got into wrongful possession of the suit lands in or about December. 9, 1947 after winning over Daulata Raoji to their side. It was also mentioned that the suit land out of the said R. S. No. 172 was with Daulata Raoji Mahadik as a tenant of Govindrao and the property being sub-division No. 2 was mortgaged by Narayanrao during his lifetime to Dnyanu Joti Nigade in the year 1922 under a possessory mortgage-deed and was handed over into his possession. The present plaintiff Bali Mahadu Jadhav therefore filed a suit for redemption of mortgage being Civil Suit No. 308 of 1947 against Nigade in the court at Satara. In that suit Nigade contended that Durgabai had a right of ownership over the suit property, but the Court held that the said contention was not proved and passed a decree for redemption of mortgage in the plaintiff favour. The property bearing sub-division No. 172/1 was with Daulata Raoji as a tenant on the condition of giving a half share in the produce. It was alleged that he colluded with the defendants and gave them possession of the said land unauthorisedly. In order to obtain possession from Daulata Raoji Mahadik as the purchaser in pursuance of the revised Tenancy Act, the plaintiff submitted a Tenancy Application against him to the Mamlatdar and since Daulta Raoji gave evidence in which he stated that the suit property was not in his possession since 1947-48 and that the same had been handed over into the defendants possession, the plaintiff as a purchaser from Govindrao filed the suit for declaration of title and for possession.

(3.) Civil suit No. 190 of 1952 was decreed by the Trial Court and possession was directed to be given to the plaintiff. In C. S. No. 27 of 1952, however, the suit of the plaintiff in respect of items (1) (7), and (9) was dismissed and a decree in respect of the other suit properties was passed. The plaintiff Govindrao filed Civil Appeal No. 121 of 1955 in respect of the three items against defendants 2 to 9 while the defendants filed Civil Appeal No. 117 of 1955 against Govindrao in respect of the decree awarded against them in C. S. No. 27 of 1952. Civil Appeal No. 118 of 1955 was filed against the decree in C. S. No. 190 of 1952. The district Judge on March 22, 1957 allowed Civil Appeals Nos. 117 and 118 of 1955 and dismissed Civil Appeal No. 121 of 1955. In the result/ both the Civil suirs Nos 27 of 1952 and 190 of 1952 were dismissed.