SURESH Vs. SUDHAKAR TUKARAM BALPANDE

JUDGEMENT

(1.) BY invoking the jurisdiction of this Court u/s 100 of the Code of Civil Procedure, the original plaintiffs have filed this second appeal being aggrieved by the Judgment dtd. 11th October, 1988 passed by the learned Additional Sessions Judge in Regular Civil Appeal no. 23/83 whereby the appeal came to be dismissed and the judgment and decree passed by the trial court on 27th December, 1982, dismissing the suit of the plaintiffs seeking partition and separate possession of his share is confirmed on the ground that the second suit for the same cause of action has been barred by the provisions of order II rule 2 of the Code of Civil procedure.

(2.) BRIEF facts are required to be stated as under: the agricultural land bearing survey No. 146/2, admeasuring 11 acres 21 gunthas is situated at village Sherala and the said land was purchased by the plaintiff and their deceased brother Ramesh jointly alongwith punjabai who was their grand mother who was shown to be the guardian of the plaintiffs and their brother Ramesh, as they were minor at the time of sale deed dtd. 29-03-1961. Out of the said land, 5 acres 0 guntha land was purchased by defendant no. 4, who is the father of the plaintiffs, by virtue of same sale deed and remaining 6 of acres was purchased by plaintiffs and their brother deceased Ramesh. Subsequently, on 23-03-1967 defendant no. 4 sold out 2 1/2 acres on Northern side out of Survey no. 146/2 to defendant no. l (a) and defendant no. 2 (b) and similarly on the same day defendant no. 4 and Ramesh sold out 2 1/2 acres land to defendant no. 2 (a) and 2 (b ). Subsequently, defendant no. 4 and deceased ramesh sold out 5 acres 1 guntha of land out of survey No. 146/2 to defendant no. 3 Omsombai for consideration of Rs. 5,000/- on 25-04-1968. The plaintiffs were not parties to the aforesaid three sale deeds. It was contended that defendant no. 4 Ganpatrao had no right, title or interest to sell out the land. The plaintiffs filed Regular Civil Suit No. 378/1971 earlier for possession of 4 acres land from defendant no. 3 Omsombai which was decreed by the trial court, but the appellate court dismissed the suit on the ground that the suit for possession was misconceived and no partition was claimed. The cause of action for the present suit arose on 27-02-1976 when the Regular Civil Appeal filed against the decision of r. C. S. No. 147/71 was dismissed. Plaintiff contended that they are the owners of the agricultural land to the extent of 4 acres and their father had no right to sell the same and therefore they have instituted the suit for partition and separate possession of 4 acres land together with mesne profits.

(3.) THE defendant combated the claim of the plaintiff and contended that the partition was effected of the agricultural land survey no. 146/2 amongst the plaintiffs, their father and deceased Ramesh and accordingly both the plaintiffs and Ramesh were allotted 2 acres of land each while their father Ganpatrao was allotted 5 acres 28 gunthas share in the said land. It is contended that after the said partition, the defendant no. l (a)and defendant no. 2 (a) (b) purchased the land from defendant no. 4 and deceased Ramesh and the present suit is result of collusion between plaintiff and defendant no. 4. The suit filed for partition and separate possession is not tenable especially when the earlier suit was dismissed by the appellate court on the ground of malafides on the part of the plaintiffs. It is contended that the defendant no. 3 purchased 4 acres land from defendant no. 4 and deceased Ramesh by virtue of the sale deed dtd. 25-04-1968 though the said land was purchased by them in the name of the plaintiffs and Ramesh as Benamidar. However, the defendant no. 4 Ganpatrao did not contest the suit and admitted the claim putforth by the plaintiff.