VENKATESH DHONDDEV DESHPANDE Vs. SOU KUSUM DATTATRAYA KULKARNI

JUDGEMENT

(1.) These two appeals by special leave arise from a suit filed by the respondents plaintiffs for recovering possession of land bearing survey Nos. 487/1 to 487/6 situated at Shirwal Peta Khandala from the appellant defendant. During the pendency of this suit a portion of the land in dispute was acquired under the Land Acquisition Act and as both the plaintiffs and the defendant laid a claim to compensation, a reference was made under S. 30 of the Land Acquisition Act for determining the eligibility for the amount of compensation. The trial Court decreed the plaintiffs' suit and First Appeal No. 160 of 1966 was preferred by the defendant to the High Court of Bombay. Following the decision of the trial Court, the reference under S. 30 of the Land Acquisition Act was answered in favour of the plaintiffs respondents and the defendant preferred First Appeal No. 173 of 1966 to the High Court. Both the appeals were heard together and by its judgment dated 10/11 October 1974 a Division Bench of the High Court dismissed both the appeals with costs. Thereupon the appellant preferred the present two appeals. As both the appeals arise from a common judgment, they were heard together and are being disposed of by this common judgment.

(2.) Facts necessary for appreciating the point of law canvassed in these appeals lie within a narrow compass. One Dattatraya Govind Kulkarni, husband of plaintiff No. 1 and father of plaintiffs 2 to 6 had borrowed a Tagai loan of Rupees 12,000 by making an application Exhibit 129 accompanied by prescribed form Ext. 128 on 7th February 1949. The loan was borrowed for constructing wells in Suevey Nos. 167 and 170 and he offered as security the lands bearing Survey Nos. 165, 166, 167, 170 and 172. In the application Ext. 129 that accompanied the prescribed form it was stated that wells have to be sunk to bring barren land under cultivation. In other words, the loan was for improvement of the land. The loan was advanced and the borrower failed to repay the loan as per the stipulations. A revenue recovery proceeding was commenced and as by the sale of the land offered as security the Government could not reimburse itself the total amount outstanding, a proclamation of sale was issued and ultimately the suit land was auctioned and it was purchased by the defendant and the sale in his favour was confirmed and he was put in possession on 20the May 1960. The plaintiffs stated that prior to the date of auction there was a partition between the father and his sons on 6th July 1956 evidenced by Ext. 53 and at this partition the suit land with its subdivisions came to the share of the plaintiffs and, therefore, the father had no salable interest in the suit land and it could not have been sold, at a revenue auction for recovering the personal debt of the father. So contending, the plaintiffs brought an action for a declaration that the sale is not binding upon them and possession may be restored to them.

(3.) The trial Court held that the suit land was joint family property consisting of Dattatraya and his sons but as there was an effective partition being a genuine one, the subsequent sale is not binding upon the plaintiffs to whose share the suit land was allotted at the partition and, therefore, the sale was void and the plaintiffs are entitled to be put back in possession.