SHIVRAM KISAN GUNJAL Vs. RAMESH VISHWANATH GUNJAL

JUDGEMENT

(1.) This second appeal is preferred by original defendant being aggrieved by the judgment and decree passed by the learned Assistant Judge, Ahmednagar on 9/10/1984 thereby allowing Regular Civil Appeal No. 420 of 1981 and setting aside the judgment and order of dismissal of R.C.S. No. 238 of 1978 passed by the learned Civil Judge, Junior Division, Sangamner, on 18/9/1981 The learned Assistant Judge directed the present appellant-defendant to hand over possession of suit property to the plaintiffs-respondents and also for holding enquiry into mesne profit.

(2.) Briefly stated, it is no more disputed that Survey No. 48/1 (which was Original Survey No. 56/1A) situated at Sangamner (Khurd) Taluka Sangamber, in all admeasuring 3 acres 33 gunthas (1 hectare 51 R.) and situated at Sangamner (Khurd) Taluka Sangamber, was owned by Vishvanath Gunjal the father of original plaintiffs-respondent Nos.1 and 2. Vishvanath Gunjal expired on 6-10-1967. However, on 8-8-1967, he had executed an agreement for sale in respect of portion of 2 acres out of said Survey No. 48/1 for Rs. 2500/- in favour of the appellant-defendant. On that day, Rs. 1600/- were acknowledged to have been paid as earnest money. It is also not disputed that the suit land was Watan land and Watan was abolished under the provisions of the Maharashtra Revenue Patel (Abolition of Office) Act, 1962 and thus the land vested in the Government when the agreement for sale was executed on 8-8-1967. Subsequently, the land was regranted on 21-1-1975. Present respondents-plaintiffs filed suit for possession on title claiming that the agreement for sale dated 8-3-1967 executed by their father Vishvanath was invalid and illegal and Vishvanath had no right to enter into said agreement for sale until regrant; and therefore no rights are vested in the appellant-defendant on the basis of the said agreement for sale to retain the suit property. Decree for mesne profit was also claimed.

(3.) On the basis of pleadings of the parties, the learned trial Judge framed various issues and came to the conclusion that the plaintiffs were not the managers of the joint family and had no right to file suit. It is not proved that the deceased Vishvanath had no right to enter into agreement for sale on 8-3-1967. The learned trial Judge also held that that the plaintiffs failed to prove that the defendant had not performed his part of the contract. It is further held that the suit is not barred by limitation and that possession of the defendant-appellant is not illegal. Amount of regrant was not paid on 8-8-1967. It was held that the defendant had not become owner by adverse possession. So far as adverse possession is concerned, it is worth noting that as mentioned in paragraph 12 of the trial Court judgment, Advocate of the defendant had specifically stated that he had no case to prove adverse possession and there was no evidence to that effect. Thus, the plea of adverse possession was waived in the trial Court.