FULABAI DASHRATH PAWAR Vs. SUMAN ANKUSH NAWALE

JUDGEMENT

(1.) THIS Second Appeal is preferred by the plaintiffs whose suit for declaration that they are the owners and for injunction that the respondent should be restrained from disturbing their possession has been dismissed by both the Courts below. The suit is in respect of (a) Gat No. 684 admeasuring 1 hectare 39 H., and (b) Gat No. 751 admeasuring 1 acre 39 H. situated at Village Saratale, District Satara hereinafter referred as the suit lands. The relationship between the parties is as follows : Appellants are the wife and daughters of Dashrath, who had two brothers Namdeo and Prahalad, their father was Ganpati Kesu Pawar. Namdeo died on 25.1.1956. Respondent Nos. 1 and 2 are the daughter and son-in-law of Namdeo respectively.

(2.) THE appellants case in brief is that there was an oral partition between Ganpati, Dashrath, Namdeo and Prahalad in the year 1952. This partition was only in respect of the house properties. According to the plaintiffs, before 1952, that is on 30th May, 1950, vide exhibit 131 and on 14th August, 1951, vide exhibit 132, Ganpati had sold the suit property to certain persons, by name Kamble, Nawale and Gaikwad who were not members of his family. Hereafter, they are referred to as 'outsiders' for the sake of brevity. This property has been purchased by Dashrath who were earning his living in Mumbai, from his own funds by a registered sale deed dated 27.4.56 vide exhibit 84 and on 15.4.64 vide exhibit 130 from these outsiders. The appellants therefore claimed that being the wife and daughters of Dashrath they have acquired a right to possess the property which has been purchased by Dashrath.

(3.) HOWEVER , it is clear that two crucial aspects have not been properly dealt with by the First Appellate Court, in fact, as would be apparent it has resulted in a perversity. Firstly, the First Appellate Court has in paragraph 6 of its judgment come to a conclusion that the transfer of land by Ganpati by sale deeds dated 30th May, 1950 and 14th August, 1951 exhibit 131 and 132 in favour of outsiders, were transactions of conditional sale with agreement to repurchase. A perusal of the said documents shows that there was absolutely no condition of repurchase in the said documents. This position is also admitted by Mr. Shinde, learned counsel for the respondent. It appears that the First Appellate Court has drawn this conclusion on the basis of recitals of the deed by which these persons transferred the property to Dashrath, that is the husband and father of the appellants and, on the basis of exhibit 117 the possession receipt. It is obvious that a recital in a subsequent document cannot be relied upon to ascertain the true nature and transaction of the earlier document. The document must be construed independently. I am of view that this has resulted in a perversity.