ISHVERBHAI MADHUBHAI Vs. RANJITBHAI FULABHAI

JUDGEMENT

(1.) This appeal has been filed by the original defendant no. 1 against the judgment and decree passed in Regular Civil Appeal No. 87 of 1976 by the learned Extra Assistant Judge Nadiad on 24-3-1977 whereby he allowed the appeal with costs and set aside the judgment and decree dated 26 passed in Regular Civil Suit No. 131 of 1973 by the learned Civil Judge (J.D.) Dakor dismissing the suit of the plaintiffs for a decree for possession and mesne profits with interest from the date of the suit vill date of delivery of possession and costs of the suit. It may be stated that the appellant herein is the original defendant no. 1 while the respondent herein are the original plaintiffs nos. 1 to 12 and original defendants nos. 2 to 5.

(2.) In Regular Civil Suit no. 131 of 1973 it was the case of the plaintiffs that the plaintiffs and the defendants nos. 2 to 5 were the co-owners of ancestral property bearing no. 3/1-3 admeasuring 31 gunthas situated in the sim of village Angadia-Chapatia in Thasra Taluka out of which 21 gunthas towards the South were sold by the defendants nos. 2 3 and 5 by oral sale on 29 to the defendant no. 1 and a mutation entry bearing no. 1445 dated 26-6-1965 was made to that effect in the revenue records. The sale consideration was of Rs. 2800/-. In the said suit it was further contended that the land was originally of the ownership of one Kabhai Ratanbhai-the plaintiffs grandmother; that the land in question was ancestral property and that the deft. no.1 has purchased 21 gunthas of this land which was sold by defendants nos. 2 3 and 5 without any legal necessity. It may be stated that the defendants nos. 2 3 and 5 are the sons of Kabhai Ratanbhai. It was the case of the plaintiffs that they had first right in the property; that the sale of the suit land was void under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 and the agreement and the sale are void under Section 23 of the Contract Act. It was further contended that the Competent Authority under the Fragmentation Act had declared the transfer void but had permitted the defendant no. 1 to retain the possession instead of evicting him. In view of this it was further averred that the defendant no.1 has not acquired any right title or interest with respect to the suit property and hence the suit was for possession. The defendant no.1 filed written statement in the suit inter alia denying the case of the plaintiffs and contended that the plaintiffs have no right to file the suit; that the suit was not properly instituted; that it is true that 21 gunthas of land were purchased by him on oral contract and that he (the defendant no. 1) had paid Rs. 2001/- towards sale consideration on 12 to the defendants nos. 2 3 and 5 and had thus purchased the suit land for Rs. 2001/- and obtained possession thereof but the defendant no. 4 had not signed the document and thereafter demanded more moneys and hence the defendant no. 1 paid Rs. 800/- on 29-6-1965 whereupon they made a statement in the Varahi book to have the property mutated in the name of the defendant no. 1. The defendant no. 1 also denied that the suit property was not sold without any legal necessity. According to the defendant no. 1 the defendant nos. 2 3 and 5 required moneys for the maintenance or the family obsequial ceremony of their deceased father and for repaying the debt incurred by their father. The defendant no.1 denied that the transaction is void under the provisions of the Fragmentation Act; that the State Government is the final authority and that the Civil Court has no jurisdiction to take any decision with respect to the final order of the Assistant Collector whereby the defendant no. 1 was allowed to continue to retain possession in any manner under Section 53(A) of the Transfer of Property Act and therefore the defendant no.1 is entitled to retain possession of the suit land.

(3.) The defendants nos. 2 to 5 in their written statement Exh. 6 inter alia contended that the property in question was ancesstral property of the plaintiffs and that the defendants nos. 2 to 5 inherited the same from Kabhai Ratanbhai. The said defendants have admitted of the oral sale having taken place on 29-6-1965 to the defendant no.1 and that the entry was accordingly effected in the revenue records. It was further contended that it was true that the said defendants have sold the suit property to the defendant no.1 without any legal necessity and that the plaintiffs were the co-purchasers and joint owners with the defendants nos. 2 to 5. It is the case of the said defendants that the sale was in contravention of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 which is void and therefore the defendant no.1 had not acquired any legal title over the suit property.