RAMESHKUMAR Vs. KUMWARDEVI

JUDGEMENT

(1.) This appeal From Order is filed challenging the judgment and order dated 1.9.1993 passed by the learned IIIrd Additional District Judge, Nanded in Regular Civil Appeal No. 276 of 1992. The appellants herein are the original defendant Nos. 1 and 2 in Regular civil suit No. 222 of 1989 and the respondent No. 1 and 2 in Regular civil Appeal No. 276 of 1992. The respondent No. 1-A and 1-B herein are the legal heirs of original plaintiff in R.C.S. No. 222 of 1989 and appellant in R.C.A. No. 276 of 1992. The respondent No. 2 herein is the original defendant and respondent in the proceedings before the lower court.

(2.) The plaintiff filed the suit against defendants for declaration that the sale deed number No. 3541 dated 24.8.1979 executed by defendant No. 3 in favour of the defendant Nos. 1 and 2 regarding suit property is null and void and in effective and not binding on the plaintiff. It is the case of plaintiff that the land Sr. No. 50 admeasuring 26 acres 4 gunthas situated at village Asadullabag was purchased by plaintiff and other three persons by registered sale deed dated 21.8.1967 from one Abdul Samad Khan. After purchase of land at Sr No. 50 the name of plaintiff and other purchasers were recorded in revenue record of the S. No. 50. It is contended that the defendant No. 3 has no concern with the suit land S. No. 50 and plaintiff came to know that the defendant No. 3 has executed sale deed in favour of defendant No. 1 and 2 regarding 12 paise share in the suit land. The plaintiff came to know the execution of the sale deed by the defendant No. 3 in the year 1989, hence she applied for copy of the sale deed and on getting the said copy, it was revealed to her that defendant No. 3 without having any right and title of ownership, has executed false and factitious sale deed in favour of defendant Nos. 1 and 2. It is further revealed from the said sale deed that so called firm purchased S. No. 50 on 21.8.1967. It is contended that the partners Nanded Development Syndicate were never possessors of the land Sr. No. 50, the provisions of Partnership Act are non convertible to the immovable property. The contention taken by the defendant No. 3 in the sale deed dated 24.8.1979 that he has got 12 paise share in the suit land, is totally misconceived and contrary to the provisions of Partnership Act. It is contended that the plaintiff and other three purchasers are the joint owners of the suit land and their ownership is not divested by any instrument to defendant No. 3. It is contended that defendant Nos. 1 and 2 have unauthorizedly occupied the land admeasuring 1 acres 20 gunthas out of S. No. 50 and they have made out plots and further sold some plots hence plaintiff also claimed relief of perpetual injunction restraining the defendants from alienating the suit land and ultimately plaintiff prayed that the plaintiff is owner of the suit land and defendant Nos. 1 and 2 have no right or interest in the same by virtue of sale deed executed by defendant Nos. 3, and prayed to decree the suit.

(3.) The defendant No. 3 was duly served. However, he failed to file written statement hence, the suit is proceeded exparte against him. The defendant Nos. 1 and 2 filed their written statement at Exh.21. The defendant Nos. 1 and 2 have denied all the contentions of plaintiff in toto. It is contended that the entire suit of plaintiff is false and baseless. It is contended that at the instigation of defendant No. 3, plaintiff has filed the suit against defendants. It is also contented that defendant No. 3 had filed suit against defendant Nos. 1 and 2 bearing suit No. 495 of 1985 for declaration that the sale transaction is null and void, however, that suit was ultimately dismissed. It is contended that the plaintiff is aware of the transaction since beginning in between defendant No. 3 and defendant No. 1 and 2. Further the revenue authorities have given effect of the sale deed dated 24.8.1979 in the revenue record and at that time the plaintiff challenged those entries immediately. Hence, the plaintiff knew from the very beginning regarding the sale deed dated 24.8.1979 and the suit therefore, is beyond limitation. It is denied that the plaintiff came to know the fact of sale deed in the month of February, 1989. It is contended that M/s. Nanded Development Syndicate is a partnership firm and the firm is owner of land S. No. 50. It is contended that when the firm was dissolved at that time defendant No. 3 got the share in the suit land to the extent of 12 paise share and accordingly defendant No. 3 was having title in the suit land and he was competent to sale the same to the defendant Nos. 1 and 2. It is contended that the plaintiff and other purchasers are not joint owner of S. No. 50. The plaintiff and other purchasers have ceased their right in the suit land after formation of registered partnership M/s. Nanded Development Syndicate. It is further contended that valuation made by the plaintiff for jurisdiction and court fees purpose is totally wrong. The value of the suit land is about Rs. 1,50,000/- and the plaintiff should have valued the suit accordingly. It is contended that the plaintiff has not properly valued the suit and paid court fees, It is contended that the defendant No. 3 was owner of the suit land by virtue of the partnership deed and defendant No. 1 and 2 are the rightful owners of the suit land by virtue of sale deed dated 24.8.1979. The plaintiff has no right and interest in the suit land and ultimately prayed for dismissal of suit. On the basis of the rival pleadings the trial court framed necessary issues as per Exh. 34 and after recording the evidence dismissed the suit.