ASHOK LAXMANRAO SHINDE Vs. GOVIND RAMA BANSODE

JUDGEMENT

(1.) This second appeal is preferred by original plaintiffs, whose suit bearing R.C.S. No. 159 of 1975 for perpetual injunction though decreed by the learned Civil Judge, Junior Division, Kallam on 25.11.1980, the said judgment and decree was reversed in Regular Civil Appeal No. 160 of 1980 by the learned District Judge, Osmanabad, on 30.9.1985.

(2.) Briefly stated, it is the case of the appellants plaintiffs that one Ratubai was the owner and possessor of lands bearing Gat Nos. 42 and 47 situated at village Wakadi, Taluka Kallam. Ratubai was in need of money for meeting expenses of litigation. Ratubai, therefore, agreed to sell 1/2 portions of said Gat Nos. 42 and 47 for Rs. 11,000/= to the present appellants plaintiffs. Agreement for sale (Exh.129) was executed on 29.12.1967. Earnest amount of Rs. 2,000/= was paid on that day. Thereafter on 16.3.1972 Ratubai received Rs. 1,000/more from appellants plaintiffs as consideration and she executed a receipt to that effect and also delivered possession of the suit lands under the said receipt. Thus, the appellants plaintiffs were put in possession of the suit lands in part performance of agreement for sale, but the defendants, who are not concerned with the suit properties, are disturbing plaintiffs' possession and hence present suit is filed for perpetual injunction restraining respondents defendants from obstructing their possession and enjoyment over suit lands.

(3.) Before we proceed to consider defence of the Respondents defendants, it is necessary to refer to some history of previous litigation. Madhav, Yeshwant and Rama were the three brothers. Madhav was having son by name Shivdas who expired during life time of Madhav, leaving behind widow Ratubai. Madhav survived by his wife Kondabai, Ratubai and Manubai (widow and daughter of Shivdas respectively). Yeshwant was survived by his sons Respondents Defendant Nos. 2,3,4, and 6. Defendant No. 5 is the son of Defendant No. 4. Rama is survived by his son Govind Defendant No. 1. Defendant No. 7 Vitthal is son of Govind. The said block Nos. 42 and 47 were allotted to the share of Madhav Suits Nos. 62 of 1959 and 64 of 1961 respectively filed by Govind and Ratubai against each other were decided by a common judgment by which suit filed by Ratubai was decreed and that of Govind was dismissed holding that Ratubai was the owner and possessor of the said lands. Two Regular Civil Appeals (Nos. 16 and 17 of 1962) filed by Respondent Defendant No. 1 Govind against the said judgments were decided by a common judgment by the learned District Judge, thereby dismissing the suit filed by Ratubai and decreeing the suit filed by Govind. Ultimately, in Second Appeal No. 1156 of 1962 decided by High Court on 12.9.1969 (Exh.61), it is held that Ratubai was the owner of the above said Gat Nos. 42 and 47. However, the High Court also held that Ratubai was not in actual possession of the suit lands when she had filed suit for declaration and injunction and as such, this Court in second appeal refused to grant relief of perpetual injunction.