NAGNATH KISHAN KONDHEKAR Vs. BINDURAM TULJARAM JADHAV

JUDGEMENT

(1.) Present appeal has been filed by original defendant No.1 (now the sole appellant has expired and his legal representatives are brought on record) to challenge the concurrent Judgment and Decree. Present respondent Nos.1 and 2 (both expired during the pendency of the Second Appeal, through legal representatives) filed Regular Civil Suit No.423/1980 before Joint Civil Judge Junior Division, Nanded for declaration of title and recovery of possession of the suit property. The said suit was decreed on 29.03.1985. Both the original defendants then challenged the said Judgment and Decree by filing Regular Civil Appeal No.113/1985. The said appeal was partly allowed by 3rd Additional District Judge, Nanded on 14.01.1992. The Judgment and Decree passed by the Trial Court was partly set aside and modified. The suit was dismissed as against original defendant No.2. However, Judgment and Decree passed by the Trial Court in respect of the suit property to appellant No.1 i.e. original defendant No.1 was maintained. Hence, the original defendant No.1 has filed this Second Appeal.

(2.) Before proceeding further, the record reflects that by order dated 04.03.1992 the Second Appeal was admitted without formulating any substantial question of law and then by order dated 29.10.2014 this Court directed both the parties to make submissions on the point of substantial question of law. Accordingly, by order dated 02.12.2014 following substantial questions of law are framed.

(3.) Before proceeding further to decide those substantial questions of law it would be necessary to consider the facts of the case in nutshell. Original plaintiffs had come with a case that suit property is admeasuring 39 ' x 72 ' North-South bearing old House No.4-2-120 and new House Nos.4-3-58 and 4-3-59 situated at Lohar Galli, Nanded was owned by their father Tuljaram. Tuljaram expired on 28.11.1961, who was survived by widow Rupanbai and three sons i.e. plaintiff No.1 Binduram, plaintiff No.2 Babulal and one Madanlal. All the three brothers were serving and residing in the State of Andhra Pradesh along with their mother Rupanbai. It is then contended that plaintiff No.1 Binduram had filed Regular Civil Suit No.8/1966 for partition and separate possession against the two brothers and mother, which was decreed ex-parte. In the said suit the partition was effected in the form that mother received open space admeasuring 24 ' x 39 ' on the Northern side. On the Southern side portion the constructed house was divided into three parts. The Eastern part out of that constructed portion went to Binduram, Madanlal was given Western part and the middle part was given to plaintiff No.2 Babulal. In the execution proceeding the respondent No.1 recovered his share in 1978. Rupanbai expired in the year 1974. It is their contention that since all the brothers were residing in Andhra Pradesh, they had given the suit house on leave and licence basis to one Tulsiram Narayan, who was their relative. He was in possession of the said property till March, 1972. It was then contended that the defendants in collusion with said Tulsiram created forged documents of sale deed purporting to show that Rupanbai as a Power of Attorney of plaintiff No.2 Babulal and Madanlal. In fact, they never executed registered sale deed nor they had authorized anyone interse to execute the sale deed. It is then contended that plaintiff No.1 had purchased share of Madanlal and also the property which was to the share of Rupanbai under registered sale deed dated 25.09.1978. Since the defendants are in unauthorized possession, they prayed that declaration be given in respect of their title and also for recovery of possession with mesne profits.