DATTATRAYA BALIRAM NAIK Vs. RAMBHABAI

JUDGEMENT

(1.) THIS is an appeal by the Plaintiffs, whose suit for possession, is dismissed by the Civil of property which was purchased in an execution providing. A few facts, out of which the appeal arises need be stated. The father of Plaintiffs Nos. 1,2 and 3 by name one Baliram Narayan Naik and a coparcener of his, filed a Suit No. 63 of 1924 in the Court of Jalgaon against one Sakharam alias Daulat Ramji Patil and Bhika Ganpat Chaudhari for the recovery of their dues on a Pro-note. Daulat was the son of Keshav and was adopted by his uncle Ramji. The family, however, apparently continued as before, On 24th March, 1924, the Plaintiffs obtained an attachment before judgment and actually levied the attachment. A decree ( Exhibit 227 ) was passed in that suit on 9th July, 1924. By the terms of the decree the attachment before judgment was continued, During the course of years several Darkhasts were filed for execution of the decree. The first Darkhast No. 830 of 1924, was filed on 25th September, 1924. The judgment-debtor paid a sum of Rs. 1,000 and agreed to pay instalments as a result of which the Darkhast was disposed of on 23rd December, 1925. Again by the terms of the order in that Darkhast, the attachment was continued with the consent of the judgment debtor; consent being given by Dagdu Desav, his natural brother an cousin by adoption, As no instalments were paid, a second Darkhast No. 230/31 was filed. It appears that the judgment creditors had not given particulars of the properties which were sought to be sold and they were, therefore, called upon to furnish the same. That is Exhibit 205. The third Darkhast, being Darkhast No. 778/34, was filed on 15th June, 1934, and it was sent to the Collector for execution. The property was ultimately sold on 27th November, 1941, and it was purchased by the decree-holders. The sale certificate in respect of those properties is at Exhibit 225. The properties purchased by the creditors were; survey No. 117 : 1 acre 13 Gs. Assessed at Rs. 32 Survey No. 3/1: 1 acre 12 Gs. Assessed at Rs. 2/8-, O acres 10 Gs. (Kharaba) Survey No. 86 : 4 acres 18 Gs. Assessed at Rs. 11/15/- survey No. 110: 3 acres 6 Gs. Assessed at Rs. 13/4/ -. After the purchase of the properties by the creditors, the judgment-debtor Daulat made an application for setting aside the sale under Order 21 Rule 19 but the application was dismissed for default. The decree-holder then made an application for possession and he was given symbolical possession on 30th April, 1943, as some of the defendants claimed to be possession in their own rights.

(2.) SURVEY Nos. 110, 86 and 3/2 were sold by Daulat to Yadav Ganpat Patyil, father of Defendant No. 4 and his brother Defendent No. 5 who were his maternal uncles in the natural family. These sales were effected by Exhibits 114 and 115 dated 15th June, 1923, and 15th August 1923 before attachment. Defendant No. 6 Daji purchased parts of survey No. 117 by three separate deeds being Exhibits 105 , 106 and 107 D/- 22-5-1933, 16th July, 1931 and 22nd June, 1932. Defendant No. 7 is the nephew of Defendant No. 6 and is jointly interested in those lands with him. Defendant No. 8 purchased part of survey No. 117 by Exhibit 207 dated 31st May, 1933. All these Defendants had raised objections and therefore, the purchaser got only symbolical possession.

(3.) THE present suit was filed on 26th November, 1953, claiming possession from the Defendants of these various survey numbers. At the date of the suit (Sakharam) Daulat was already dead. The Plaintiff alleged that the sale in favour of Yadav Pati and Vyankat Mayaram Patil is a sham transaction and never intended to operate as a sale, that even after the sale Daulat and his brother continued to remain in possession of the property. At the date of sale as Daulat was dead, his daughters Rambhabai, Sunderabai and Shewantibai were made Defendants Nos. 1 to 3. He also alleged the same infirmity in the other sales and also contended that these sales having Been effected after his attachment before judgment in suit, they were not binding on him and he was entitled to claim possession of the property. Defendant No. 9 is the Son of Dagdu, whose father Deshav was the brother of Daulat, Defendants Nos. 10 , 11 and 12 are alleged to be the tenants. The Defendants hotly contested the suit. Defendants Nos. 1 to 3 contended that Daulat had alienated the properties in favour of the various purchasers and they had no connection with those properties and did not claim any interest in them. Defendants Nos. 4 and 5 contended that their sale was of a date prior to the date of attachment before judgment; that it was a genuine sale and that from the date of the sale they were continuously in possession of the properties and therefore, as against them the plaintiff was not entitled to succeed. They also challenged the attachment itself as not having been effected. Defendants Nos. 6 and 7 made the same contentions and also contended that even in their case the attachment was not effective to affect their interest. It was contened that Darkhast No. 230 of 31st January, 1931, having been disposed of on the 15th of June, 1931, for default of the decree-holder, Order 21 Rule57, applied and the attachment therefore ceased. That being so, on the date on which they made the purchase, no attachment was in existence and, therefore, their title was not affected. It was also contended by all the Defendants that they were holding possession of their respective properties sold to them for more than 12 years as owners adversely to Daulat and, therefore, they were protected by their adverse possession as against the Plaintiffs also.