VIJAY BHASKARRAO DESHMUKH Vs. TUKARAM

JUDGEMENT

(1.) The present second appeal is directed against the judgment and order passed by the learned Additional District Judge, Osmanabad i.e. the learned first appellate court, in RCA No. 112 of 1993. Under the impugned judgment, the learned first appellate court has reversed the decree passed in RCS No.42 of 1977 on 12/07/1991 by the learned trial court i.e. Civil Judge (Junior Division), Tuljapur.

(2.) Facts giving rise to the present appeal can be summarized as follows :

(3.) The learned counsel for the appellant / plaintiff submits that the learned first appellate court has definitely erred in setting aside the decree passed by the learned trial court in favour of the appellant / plaintiff and wrongly dismissed the suit of the the appellant / plaintiff. According to him, there was documentary evidence on record in form of mutation entry No.495 at Exhibit-6, whereby defendant No.1 i.e. father of the appellant / plaintiff had relinquished his right over the suit properties in favour of the appellant / plaintiff. Further, the learned first appellate court also ignored the judgment of Division Bench of this Court in the case of Hirabai w/o Harji Ingale vs. Babu Manika Ingale, reported in 1980 Mh.L.J. 494, wherein it is observed that oral relinquishment of interest by a Hindu in joint family property exceeding Rs.100.00in value is valid and effective. According to him, defendant No.2 though claimed that defendant No.1 had sold the suit land out of legal necessity but he did not make any inquiry about such necessity before purchasing the suit property. On the other hand, the learned counsel for respondent No.1 supported the judgment passed by the learned first appellate court. According to him, the judgment of Division Bench in case of Hirabai Ingale (supra) is over ruled by the Full Bench of this Court in the case of Kesharbi Jagannath Gujar vs. The State of Maharashtra and others, reported in AIR 1981 Bombay 115 and has no applicability in the instant matter. Further, according to him, there cannot be any issue of legal necessity as the language of mutation entry No.495 at Exhibit-6 clearly indicated that there was no relinquishment of interest by defendant No.1 in favour of the appellant / plaintiff in the suit land but it was only effected for a limited purpose of cultivation. As such, he prayed for dismissal of the appeal.