NATHU YESHWANTRAO BHUSARI Vs. SONABAI JAGANNATH GANAR

JUDGEMENT

(1.) An application for review filed in the year 1982 seeking review of the judgment of the learned Single Judge of this Court passed on 19-12-1981 in Second Appeal No. 72 of 1970 arising out of the suit filed in the year 1965 is the subject-matter of decision by us.

(2.) The original plaintiff Nathu son of Yeshwantrao Bhusari filed a suit for possession of the land in question comprising of Khasra Nos. 50/1 and 111 situated at village Sirpur in Umred Tahsil against the original defendants Jagannath Sitaram Ganar and Motiram Sitaram Ganar and others in the Court Judge, Junior Division, Umrer. The original plaintiff also prayed for decree for mesne profits for the years 1962-63 and 1963-64 amounting to Rs. 1500/- and subsequent period prayed for an inquiry into mesne profit from the date of suit till delivery of possession. It was inter alia averred by the plaintiff that under the registered sale-deed dated 5-7-1956 he had purchased the disputed property, and the defendant No. 1 was his servant, who was looking after maintenance of the field and growing vegetables in these two fields, but the defendant No. 1 did not properly render the account and, therefore, his services were terminated. According to the plaintiff, even thereafter the defendants Nos. 1 and 2, who are father and son, continued to be in possession of the property.

(3.) The original defendants Nos. 1 and 2 filed the joint written statement and denied the averments of the plaint. In specific pleadings, the defendants Nos. 1 and 2 set up the defence that the property in question was sold by publication in the year 1951-52 by one Shri Chitnavis of Nagpur and the plaintiff, defendants Nos. 1 and 2 and defendant No. 3 had entered into an agreement that this property along with other property should be purchased by them in the auction. According to the agreement, the plaintiff and the defendant No. 3 were to contribute Rs. 4500/-, and the defendant No.1 was, to contribute Rs. 1000/-. The defendant No. 1 paid Rs. 1000/- to the plaintiff and it was agreed between the parties that the defendant No. 1 would take the aforesaid land in question as his land. The defendant No. 3, Atmaram, who was to bid at the auction, was not prepared to offer any bid for more than Rs. 10,000/-, and since the plaintiff was interested in purchasing that property of Chitnavis, he negotiated the transaction with Shri Chitnavis at Nagpur According to the defendant No.1 at this time Rs. 1000/- was paid by, him to the plaintiff. Since the plaintiff had no sufficient funds at that time it was sold to Rangnath and Bajirao on 7-8-1952 and thereafter the plaintiff purchased the entire property from Rangnath and Bajirao including the land in question on 5-7-1956. According to the defendant No. 1, since it was agreed that the disputed land would belong to defendant No.1 and he had already paid Rs. 1000/- to the plaintiff as per the agreement, the defendant No.1 was put in possession by the plaintiff in part performance of the said agreement. The specific plea set up by the defendants Nos. 1 and 2 in para 7 of the specific pleadings in the written statement reads as under :