GIRDHARBHAI V PATIL Vs. GANPATBHAI KALUBHAI

JUDGEMENT

(1.) This is plaintiff's Second Appeal.

(2.) The brief facts are that Kalu Laxman had two sons, viz. Tukaram Kalu and respondent No. 1 Ganpatbhai Kalubhai. Survey No. 18/2, Area 10 Acres 22 Guntha situated in Hathoda was joint Hindu Family property. Kalu Laxman was karta. After the death of Kalu Laxman the joint family property was partitioned amongst his two sons, viz., the plaintiff appellant and the defendant respondent No. 1. Plot No. 18/2 went to the share of Tukaram Kalu. Defendants No. 2 to 4 are sons of defendant No. 1. In view of the said partition Tukaram Kalu became owner of the disputed property in which the defendant No. 1 had no right title or interest. Tukaram Kalu, on account of his inability, shifted to village Ashta. He executed a registered Agreement to Sell on 10.5.1969 in favour of plaintiff-appellant agreeing to transfer the aforesaid land for Rs. 29,000/-. The possession was also transferred under the said Agreement to sell, It is also mentioned in the Agreement that the plaintiff-appellant was in possession of the disputed land since four years before the execution of agreement to sell. On 12.5.1976 the defendant tried to obstruct the plaintiff's occupation over the land in dispute and further obstructed the appellant from entering the said land. Accordingly the Suit for permanent injunction was filed.

(3.) The Suit was resisted by the defendants on the ground that no doubt the property was entered in the name of Tukaram Kalu as Manager of joint Hindu Family of Kalu Laxman, yet inspite of this entry Tukaram Kalu could not be absolute owner of the property and he had no right to execute the Agreement to Sell in favour of the appellant. The said Agreement to Sell is said to be invalid inasmuch as no permission of the Collector was obtained for executing the Agreement to Sell in respect of new tenure land, The Agreement to Sell was thus alleged to be void. It was also pleaded that Tukaram Kalu admitted in the Partition Deed Dted 26.4.1976 that the defendant No. 1 has half share. Hence the Suit was liable to be dismissed.