DAGADU PATILBA KHARDE Vs. BHAMABAI ALIAS SHAMABAI

JUDGEMENT

(1.) THESE two First Appeals are directed against the judgment and decree dated 12th November, 1982 passed by the IInd Joint Civil Judge (S. D.), Ahmednagar, in Special Civil Suit No. 40/1977. The original appellants in First Appeal No. 36/1989 were original defendant Nos. 1 to 3. Out of them, original defendant No. 1, who was appellant No. 1 has died pending these appeals and his legal representatives were brought on record during the pendency of the said appeals. First Appeal No. 34/1989 is preferred to by original defendant Nos. 4 and 5. As both the appeals were directed against one and the same decree, the appeals were heard together with the consent of the parties and they are being disposed of by this common judgment.

(2.) THAT, the facts which were not in dispute before us may be stated at the outset. Defendant No. 1 Rambhau had two wives, namely, Kausalyabai and Tanhabai who are appellant Nos. 1a and 1b in First Appeal No. 36/1989 as legal representatives of deceased Rambhau. Rambhau had three sons by name, Deoram (who died on 20-12-1971 leaving behind him the original plaintiffs who are respondent Nos. 1 to 4 in both the appeals); Malak @ Mahipati (Original Defendant No. 2); and Popat (Original Defendant No. 3 ). Original plaintiff No. 1 Bhamabai is the widow of Deoram and the other original plaintiffs are his daughters. The daughters were minors when the suit was filed. But they have since became majors are represented before us by a Counsel, namely, Shri R. T. Sharma. The family of Deoram and his sons was a joint Hindu Family having lands and some other property at Village Varshinde. Deoram was married to plaintiff No. 1 sometime in 1958 to 1960. The native place of plaintiff No. 1 was Village Fatyabad which was at a distance of about 10 kms. from Village Varshinde. Her father Sakharam held some lands at Village Fatyabad. He had only three daughters, out of whom one was married 7 or 8 years before the marriage of plaintiff No. 1 Bhamabai with Deoram and the other was married some 5 or 6 years after the marriage of plaintiff with Deoram. For one reason or the other, sometime before 1960, defendant No. 1 Rambhau had broken the Khata of lands which was standing in his name and had nominated his three sons as holders of distinct lands which were located at Varshinde. The family, however, continued to be joint because it is nobodys case that there was any severance of status despite the distribution of lands and breaking of Khatas. Defendant No. 1 Rambhau held jointly with one Bhimaji Balaji Dighe two pieces of land at Varshinde bearing Survey Nos. 159/1 and 159/3. They sold the said pieces of lands to Vithoba Gajaba Wabale and Namdeo Gajaba Wabale under a sale deed dated 21-1-1962 (Exhibit 126) for a sum of Rs. 6,000/ -. The object of sale was said to be purchase of another piece of land as per the text of the said sale deed. On or about the same day, Kaushalyabai, the step-mother of Deoram sold her two pieces of lands Survey Nos. 157/2 and 157/4 to some third party describing it as a land purchased by her earlier for a sum of Rs. 3,000/- (The aforesaid sale deed was produced on record but was not proved ). Thereafter, on 15-2-1962, Deoram purchased from one Yashodabai Pandharinath Joshi, the suit land i. e. southern half portion of consolidated Survey No. 63 of Village Mandave for a sum of Rs. 10,800/ -. Deoram is said to be a tenant in the said land and after certain proceedings, private sale in his favour was said to have been validated by the tenancy authorities. The aforesaid sale deed did not describe the land as a Bagayat land nor did it refer to any well located in it. Village Mandave where this land was located, is at a distance of only a furlong or two from Village Fatyabad which was the home town of Sakharam, the father of plaintiff No. 1 Bhamabai. It is this sale deed and the land involved therein which is the subject matter of litigation in the present proceedings.

(3.) DEFENDANT No. 1 Rambhau had one daughter and her marriage had taken place sometime in the year 1967. An amount of Rs. 2,000/- was raised for that marriage by deceased Deoram by executing a conditional sale deed of some land in favour of one Jyotiba Malhari vide sale deed Exhibit 129. Soon after this, Deoram became ill of Cancer and had to be treated at Bombay for some time. Deoram succumbed to the deceased and died on 20-12-1971. Thereafter, on 4-8-1976, defendant No. 1 Rambhau executed in favour of defendant Nos. 4 and 5 an agreement of sale of the suit land for a sum of Rs. 60,000/- stating therein that an amount of Rs. 30,000/- was received by Rambhau as a part of the consideration for the payment of the loans due to Land Mortgage Bank, Union Bank, Mandave Multi-Purpose Society and some other hand loans. In this deed of agreement of sale, the suit land was described as "vihir Bagayat and Patsthal" (Irrigated on well water as well as canal water) and it was further stated therein that the vendor had only one-half share in the well that was located in the land. Defendant No. 1 Rambhau had described that land as the land purchased by him. This agreement of sale was attested by plaintiff No. 1 Bhamabai and some others. On the same day, a possessory receipt (vide Exhibit 127) was executed by defendant No. 1 Rambhau and the same was also attested by plaintiff No. 1 Bhamabai and some other witnesses. This aforesaid transaction also is a subject matter of the present litigation.