BHIKHABHAI KHODABHAI PARMAR Vs. AMARSANG RAIJIBHAI PARMAR

JUDGEMENT

(1.) THIS Appeal under Section 100 CPC has been preferred by the plaintiff in Regular Civil Suit No.338/1982 against the judgment and order dated 1st March, 1989 passed by the learned Assistant Judge, Bharuch in Regular Civil Appeal No.22/1986. The Appeal is admitted on the following substantial questions of law : -

(2.) THE dispute pertains to the sale of the house bearing property no.638 situated at Kahanva, District Bharuch. By registered sale deed dated 28th September, 1981 the defendant no.2 purchased the suit house from one Khodsang Narsang Parmar, the defendant no.1, the father of the plaintiff. Pursuant to the said sale, the defendant no.2 was put into possession of the suit house. The plaintiff, son of the vendor, the defendant no.1, instituted Regular Civil Suit No.338/1982 in the Court of Civil Judge (J.D.), Jambusar to challenge the said sale and for declaration that the plaintiff was the co -owner and possessor of the suit house. According to the plaintiff, the suit house was a joint family property. His father, the defendant no.1 had no right or authority to sell the house without the consent of the plaintiff. The suit was contested by the defendant no.2 by written statement Exh.39. According to the defendant no.2, the defendant no.1 vendor was the sole owner of the suit house and that it was his self -acquired property. He had the right and authority to sell the house and that the defendant no.2 had purchased the suit house for consideration; that the defendant no.2 had received possession of the suit house from the defendant no.1 as well as the plaintiff. The learned Civil Judge, by judgment and order dated 30th October, 1985, allowed the suit and passed decree in favour of the plaintiff. The learned Civil Judge was pleased to hold that the suit house was the ancestral property of the joint ownership of the plaintiff and the defendant no.1; that the defendant no.1 had sold the suit house to the defendant no.2 without the consent of the plaintiff.

(3.) FEELING aggrieved, the defendant no.2 preferred Regular Civil Appeal No.22/1986 in the Court of learned District Judge, Bharuch. The Appeal was heard and decided by the learned Assistant Judge. The learned Assistant Judge was pleased to observe that the suit house was purchased by the defendant no.1 in execution of court decree. It was self -acquired property of the defendant no.1 and the defendant no.1 had the right to sell it. The defendant no.2 was the bonafide purchaser for consideration. The learned Assistant Judge also observed that the defendant no.2 had received possession of the suit house from the defendant no.1 -the vendor as well as the plaintiff who was then in possession of the suit house. Thus, the suit house was sold by the defendant no.1 was within the knowledge of the plaintiff. The suit instituted by the plaintiff was collusive and was filed with oblique motive and ulterior purpose.