NARAYAN RAMCHANDRA BHOKARDANKAR Vs. SAKHARAM PATILBA SONUNE

JUDGEMENT

(1.) This appeal takes exception to the judgment and decree dated 31.08.1994 in Regular Civil Appeal No. 2/1993 passed by the learned Additional District Judge, Buldhana by which, the judgment and decree dated 22.09.1992 in Regular Civil Suit No. 133/1987 by the Civil Judge, Senior Division, Buldhana came to be confirmed. The substantial question of law involved in the above appeal is, as follows:

(2.) The Appellant is the original Plaintiff and the Respondents herein are the original Defendants. The Plaintiff had filed Regular Civil Suit No. 133/1987 for declaration, that the agreement of sale between the Defendant No. 2 Sakharam and the Defendant No. 1 Sakharam Sonune is void. The Plaintiff had consequently sought possession of the said property. The Plaintiff's case was that the Plaintiff and Defendant Nos. 2 to 4 are brothers. Their father Ramchandra Bhokardankar expired on 08.03.1956 and mother expired on 24.04.1958. It is the case of the Plaintiff that their father was the karta of the family and after the death of father and mother of Plaintiff, the joint Hindu family of the Plaintiff and Defendant Nos. 2 to 4 continued till August, 1978 and that he was the manager of the joint Hindu family. The property belonging to the joint Hindu family was the agricultural land situated at Malvihir, Taluq Chikhili, bearing Survey No. 10, area 11.27 acres with one Well. It is the case of the Plaintiff that the said property was partitioned in August, 1978 amongst the Plaintiff and his brothers i.e. Defendant Nos. 2 to 4 and at the time of partition, there was an agreement between the Plaintiff and Defendant Nos. 2 to 4 that in case of sale of share, by any of the brothers, preference should be given to the other brothers, than a stranger and that the intending seller brother was to give the market price of the land, and in case of refusal by the other brothers, the intending seller brother would be free to sell of his share to any stranger. It is the case of the Plaintiff that the despite the aforesaid agreement, the Defendant No. 2 Sakharam entered into an agreement to sale with the Defendant No. 1 in respect of his 1/4th share in survey No. 10 of village Malvihir. It is his case that the above agreement for sale was at the rate of Rs. 2500/ per acre and that since the Plaintiff had a preferential right over the Defendant No. 2 to purchase the suit land at the same price, as it was agreed to by the Defendant at the time of partition and that he has the right of pre emption. The Plaintiff in the suit stated that he is ready to deposit the amount in court. The Plaintiff' therefore, claimed possession and also mesne profit. There are further averments in the plaint as regards how the Defendant No. 1 got his name entered in the revenue record. The said pleadings are not material in the context of the substantial question of law that arise for consideration.

(3.) The Defendant No. 1 Sakharam filed his written statement and the case of the Defendant No. 1 was that the Defendant No. 2 had asked the Plaintiff whether he is ready to purchase the land, before entering into an agreement with him, and since the Plaintiff has shown disinclination to purchase the said land, he has entered into an agreement for sale with the Defendant No. 2 on 14.04.1980. It is the case of the Defendant No. 1 that there is a partition between the Plaintiff and his brothers i.e. Defendant Nos. 2 to 4 and that the said partition was effected by carrying out measurement and fixing the boundaries and that the land in question which he had agreed to purchase from Defendant No. 2 was in the name of the Defendant No. 2 in the revenue record. It was the case of the Defendant No. 1 that though the Defendant No. 2 as also the Defendant Nos. 3 and 4 have entered into an agreement of sale of land of their share with a stranger Bhagwan, but those sale deeds have not been assailed by the Plaintiff'. The Defendant No. 1, therefore, prayed for dismissal of the suit. The Defendant No. 2 Sakharam has also filed his written statement and took a stand that before entering into the said agreement of sale, he had asked the Plaintiff about the same, but the Plaintiff showed his disinclination to purchase the land and asked the Defendant No. 2 to sell the land to any body he chooses.