VISHNU Vs. GUNWANTRI PARAMANAND MALVIA

JUDGEMENT

(1.) THIS second appeal has been fileld by the original plaintiffs against the judgment of the Assistant judge, Akola, in Civil Appeal No. 171 of 1960, decided on 22-11-1962.

(2.) THE original plaintiffs had filed a suit for possession and damages for use and occupation. The suit house was out to auction sale in Revenue Case No. 279 of 1950-51 of Akola for recover of arrears of Municipal taxes. In this auction sale the house was purchased by sitabai, the mother of the plaintiff No. 2 and the mother-in-law of plaintiff No. 1 Laxmibai, on 17-11-1950. Sitabai died on 29-1-1951 before the sale was confirmed in her name in those auction proceedings. It was contended by the plaintiffs that before her death sitabai had orally bequeathed and figted the said suit property to plaintiff No. 1 Laxmibai in December 1950. In the said Revenue Case the name of plaintiff No. 1 Laxmibai was brought on record in place of Sitabai and a sale certificate was issued by the Revenue Authorities in her name and her name is also recorded in the Recod of Rights Thus, according to the plaintiffs, Laxmibai became absolute owner of the suit house by virtue of this sale. It was alternatively contended that even if the gift and the oral will are found to be invalid, the plaintiff No. 2 being the son of Sitabai became owner of the suit house. It is contended by the plaintiffs that the defendants Nos. 1 to 7 are wrongfully in possession of the suit house, and therefore, they claimed possession of the suit house as well as the damages. It was further contended that on confirmation of the sale the plaintiff No. 1 got symbolical possession of the suit house on 31-7- 1953 and the defendatns were asked to vacate the suit house, but they failed to vacate. The plaintiffs obtained premissionn of the Rent Controllere and thereafter issued the notice. But as in spite of this notice the defendants refused to vacate the suit house, the present suit, was filed.

(3.) THE defendants 1' (a) to (f) are parmznand Malvia. The case of the defendant No. 1 was that he was the tenant of defendant No. 2 Shantamma. Plaintiff No. 2 Radhakisan had filed Civil Suit No. 398 of 1948 on the file of the second civil judge, class, I, Akola decided on 29-11-1949 and in that suit it was held that parmanand Malviya was a lessee from the original owner and the plaintiff No. 2 Radhakisan could not oust him. Defendant Nos. 2 and 3, namely, shantiamma and Lachmayya challenged the confirmation of the sale on the grounds raised by the defendant No. 1 and in addition they added that the suit house was owned by the defendatn No. 2's husband, defendatn No. 3, Lachmayya and one Motiram. The plaintiff No. 2 obtained a sale-deed from Motiram of 8-10-1943 in respect of half share of the suit house and from Lachmayya on 28-9-1944 in respect of the remaining half share. The plaintiff No. 2, however, could not obtain possession because the defendant No. 2 and her 2 sons, namely, Kanhaiya and Gopal, were in possession of the suit house. The plaintiff No. 2 therefore, filed Civil Suit No. 390-A of 1948 which was decided by the Civil Judge, Class I, Akola. on 29-11-1949. It was held in that suit that the defendatn No. 2 and her sons, Gopal and Kanhaiya, are owners of the suit property and the sale-deed executed by Lachmayya and Motiram could pass only their interest in the suit house. It was further contended that the present auction sale in the Revenue Proceedings were brough about by fraud and mispresentation by the plaintiffs. Plaintiff No. 2 Rahakisan through his agent pressed for the sale of the suit house without revealing the fact to the revenue authorities or the municipal authorities about the interest of other owners. No notice of demand was issued to the real owners, that it is the defendant No. 2, kanhaiya and Gopal. The property was purchased by the plaintiff no. 2 under the sale-dded for Rs. 8000\-, but it was held by the Civil Cpourt as well as the High Court that Radhakisan purchased only 2/5th share in the property and the 3/5th remained with Shantamma, kanhiya and Gopal. Howver, by this method plaintiff No. 2 Radhkisan brought about this sale of the suit house in revenue recovery proceedings and purchased it in the name of sitabai for paltry sum of Rs. 4000/- Further the confirmation of the sale was itself a nullity, because in the meantime sitabai, the mother of the plaintiff No. 2 died. The whole transaction was brought about by mispresentation and fraud and Radhakisan deliberately kept the real owners in ignorance about the whole affair. The defendant No. 2 and her two sons, Kanhaiya and Gopal, were the owners of the property and no notice of demand was issued to them by them Municipal authorities. The sale is, therefore, void. The oral will and the gift alleged by the plaintiffs is also void in law and no right could be acquired by the plaintiff No. 1 on that basis. It was further contended that the markere value of the suitr house is Rs. 15,000/ -. The plaintiff No. 1 was not the auction purchaser not the so-called rights in favour of sitabai had legally developed in the plaintiff No. 1. Therefore, it was contended that the suit was false to the knowledge of the plaintiffs and the defendants are entitled for compensatory costs.