SUBODHKUMAR Vs. BHAGWANT NAMDEORAO MEHETRE

JUDGEMENT

(1.) The short question which arises for consideration in this civil appeal is : whether on the facts and circumstances of the case the lower appellate court was right in holding that the issue of legal necessity even if decided in favour of defendant Nos.1 to 5 (appellants herein) was not a "fact in issue" and was therefore not a relevant fact in a suit for possession.

(2.) The facts giving rise to this civil appeal are as follows : Land admeasuring 12 acres 16 gunthas in Survey No.218 situated within Chikhli Municipal Limits, District Buldhana, was owned by Nimbaji and his family members. It was an ancestral property. Nimbaji had five sons. One of his sons was Panditrao (defendant No.6). Nimbaji and his four sons excluding Panditrao agreed to sell 9 acres 16 gunthas out of the above ancestral lands to the plaintiffs (respondent Nos.1 to 4 herein). The agreement was reduced to writing. It was registered on 18.3.75. It was followed by a conveyance dated 31.3.75. Panditrao was neither a party to the writing agreement nor to the sale deed. He did not consent. He protested against the transaction. Panditrao had entered into an agreement with defendant Nos.1 to 5 on 5.11.74. It was an unregistered agreement. It was followed by a conveyance executed by Panditrao in favour of defendant Nos.1 to 5 on 29.3.75. The transaction between Panditrao and defendant Nos.1 to 5 was confined to an area admeasuring 2 acres and 2 gunthas of land out of 9 acres and 16 gunthas purchased by the plaintiffs. In the suit, defendant Nos.1 to 5 claimed southern portion to be in their possession.

(3.) Plaintiffs contended that the agreement executed by Panditrao in favour of defendant Nos.1 to 5 dated 5.11.74 was a fabricated ante-dated document, engineered to defeat the plaintiffs agreement with Nimbaji (Karta) dated 18.3.75 under which plaintiffs were put in possession of the land admeasuring 9 acres and 16 gunthas on 18.3.75 and, therefore, though the defendants conveyance dated 29.3.75 is before the conveyance in favour of the plaintiffs dated 31.3.75 the plaintiffs were entitled to possession of the whole land admeasuring 9 acres and 16 gunthas. Accordingly suit for possession was filed by the plaintiffs on the basis of the conveyance deed dated 31.3.75. The plaintiffs, however, did not seek formal cancellation of the conveyance executed by Panditrao in favour of defendant Nos.1 to 5 dated 29.3.75.