RAGHUNATH GANGADHAR KAKADE Vs. CHAGAN BABURAO KAPSE

JUDGEMENT

(1.) This second appeal arises from the decree passed by the learned Civil Judge, Junior Division at Mohol on 24-1-1985 partly decreeing R. C. S. No. 187 of 1980 and confirmed by the learned 4th Additional district Judge at Solapur vide his Judgment and Order dated 19-4-1990 in regular Civil Appeal No. 209 of 1985 The appellants had instituted R. C. S. No. 187 of 1980 and the learned Civil Judge, Junior Division at Mohol declared that they are the owners of agricultural land in Gat No. 73 of village Ardhanari in mohol Taluka, District Solapur to the extent of 1/6th share only. While admitting this second appeal on 21-10-1991, the substantial questions of law, as required under section 100 of Civil Procedure Code, were not framed and during the course of arguments the learned counsel for the plaintiffs submitted that the substantial questions of law have been framed in the appeal memo and they are as under :-" (a) When the appellants were not a party to Regular Civil Suit No. 32 of 1973 and the decree passed in the said suit was not registered as required under section 18 of the Indian Registration Act, it ought to have held that the appellants are bona fide purchasers for value without notice. (b) When the appellants had produced documentary evidence to show that the deceased Baburao had utilised the consideration which he had received from the appellants to satisfy his debts, it ought to have held that the agreement and sale deed in respect of the suit lands was for the benefit of the family and hence binding on the other members. "

(2.) The suit land admeasured about 7 hectares and 60 Ares located in Gat no. 73 of village Ardhanari in Mohol Taluka and admittedly it was purchased by shri Baburao Kapase vide a registered sale deed dated 15-11-1957. The plaintiffs claimed that the defendants' father Baburao Kapase agreed to sell the suit land for a consideration of Rs. 14,000/- and the agreement for sale (Exh. 57) came to be signed on 13-7-1976, on payment of Rs. 2000/- out of the total consideration. On the same day possession of the suit land was handed over to the plaintiffs by baburao vide Kabja-Pavati at Exh. 58 and on 14-2-1977 a supplementary agreement (Exh. 59) for sale was signed between the parties when the plaintiffs paid a further sum of Rs. 3,500/- to Baburao. On 1-12-1977 Baburao was paid an additional sum of Rs. 8,500/- and the sale deed (Exh. 60) was signed and registered. Baburao died sometimes in the year 1979 and the suit land remained in possession of the plaintiffs. However, in the meanwhile Regular Civil Suit No. 32 of 1973 filed by the defendants against Baburao Kapase came to be decreed on 17-12-1977 by a declaration that the present defendants were entitled to 5/6th share in the suit land and under section 54 of Civil Procedure Code the partition was directed to be effected so as to hand over the possession to the defendants. The plaintiffs did not take any steps for being impleaded as defendants though they had knowledge of R. C. S. No. 32/1973. Instead they filed Regular Civil Suit no. 187 of 1980 on or about 21-11-1980 for a declaration that they are the owners of the suit land and the decree passed in Regular Civil Suit No. 32 of 1973 was not binding on them. They also prayed for an order of permanent injunction against the defendants. The plaintiffs also prayed for a declaration that the decree obtained in Regular Civil Suit No. 32 of 1973 was a collusive decree between the defendants and their late father Baburao Kapase.

(3.) On behalf of the plaintiffs, plaintiff No. 2 Pandurang Kakade was examined as P. W. 1, Anandrao Deshmukh as P. W. 2, Sakharam Kulkarni as P. W. 3 and Dadashiv Varade as P. W. 4. Whereas the defendants examined Vedvyas narayan Avadhane as D. W. I so as to produce the record in R. C. S. No. 32 of 1973. He was an employee from the Court. Vijaysinh Jahagirdar, Advocate was examined as D. W. 2 and Defendant No. 1 Chagan Kapase was examined as D. W- 3- Certified copy of the mutation entry No. 451 dated 27-12-1957 is at Exh. 44, the 7 x 12 extract of the suit land at Exh. 45, a copy of the Written Statement filed by Baburao contesting R. C. S. No. 32/73 is at Exh. 49 and his depositions in the said suit at Exh. 48, whereas the copy of the decree dated 17-12-1977 is placed on record at Exh. 71 and the Judgment is at Exh. 74.