DILIP SINGH Vs. DHANIRAM NARVANDAS

JUDGEMENT

(1.) This second appeal arises out of regular Civil suit no. 54 of 1961 filed by respondents Nos. 1 to 5 Respondent No. 5 is the mother of respondents Nos. 1 to 4 and respondent No. 6 is the father of respondents Nos. 1 to 4 Respondent No. 6 was original defendant No. 3. The present appellant was defendant No.3. The present appellant was defendant No. 2 in the trial Court and respondent No. 151/1 situate at mouza Nari Nagpur. On 1-3-1937 one Sitaram Ragho Chawan acting for himself and as a guardian of his minor son Eknath made an agreement of sale in favour of original defendant No. 3 Naravandas in respect of 8 acres from field No. 151 . Under that agreement an earnest amount of Rs. 200/- was paid by defendant No.3 to Sitaram. The agreement was that the property should be sold for an amount of Rs. 2,500/- to defendant No. 3. On 19-4-1937 Sitaram acting for himself and his minor son made a sale deed in favour of Antu, the father of the defendant No. 3 Naravandas. That sale deed was for a sum of Rs. 2,500 and the recitals in that sale deed show that the vendor acknowledged the receipt made in favour of defendant No. 3 on 1-31937. Under this sale deed 8 acres of land from the field which was then numbered as field survey No. 151/1 was sold to Antu. The Isar -chitti dated 13- 1937 is Exh. 34. The sale-deed in favour of Antu is Exh. 17. On 29-3-1954 the Defendant No. 3 Naravandas sold to defendant No. 1 by Exh. 31 field survey No. 151/1 measuring 8 acres. The sale-deed was for a sum of Rs. 4150/- Defendant No. 1 Abdul Rahim in his turn by Exh. 29 dated 4-4-1957 sold the same property field survey No. 151/1 to the present defendant No. 2 for a sum of Rs. 4300/- After the sale was made in favour of defendant No.2 the present suit was filed by the four sons and the wife of Naravandas. They claimed that survey No. 151/1 was the property purchased by Antu on 19-41937. (Exh. 29) are not binding on their 5/6th share in the property. The relief, therefore, claimed is for a declaration that the plaintiffs had 5/6th share in the suit field and they have consequently prayed for relief of possession.

(2.) Defendants Nos. 1 and 2 opposed the suit. Defendant No. 1 filed a written statement at Exh. 14 and written statement filed by defendant No. 2 was at Exh. 10. Defendant No. 3 Naravandas was ex parte. To summarise the contentions taken up on behalf of the defendants Nos. 1 and 2 it may be stated that their case was the sale-deed of 19-4-1937 was really a transaction made by defendant No. 3 Naravandas . According to them in that sale-deed Antu was only a benamidar for defendant No. 3 Defendant No. 3 had purchased this property from out of his self-earnings in the name of his father. It was, therefore, contended that defendant No. 3 was competent to transfer full title to defendant No. 1 under the sale-deed dated 29-9-1954 and consequently defendant No. 1 had obtained full ownership under that sale-deed. The further contention was that the sale-deed in favour of defendant No. 2 on 4-4-1957 also gave full ownership to defendant No. 2. It was, therefore, contended that the plaintiffs could not claim any share in the suit property. On account of the pleadings between the parties issues were framed by the learned trial Judge at Exh. 15. He found that the defendants established that the property purchased in the name of Antu on 19-4-1937 was really a purchase made by defendnat No. 23 that field survey No. 151/1 was the self-acquired property of defendant

(3.) He found that the case of the plaintiffs that the property was of the ownership of Antu was not established. He accordingly held that the defendant No. 3 was competent to transfer the property to defendant No. 1 and therefore, the sale-deeds in favour of defendants Nos. 1 and 2 should not be challenged by the present plaintiffs were not entitled to get any share in the suit property. He accordingly dismissed the suit filed by the plaintiffs. 3. Against that decision the plaintiffs filed Civil Appeal No. 154 of 1963. The learned Extra Assistant Judge, Nagpur, allowed that appeal and held that the property covered by the sale deed of 19-4-1937 was the property purchased by Antu. He also found that it was not the self-acquired property of defendant No.3. He accordingly held that the plaintiffs were entitled to 5/6th share in the property. He therefore set aside the decree of the trial Court and gave a declaration that they were the owners of undivided 5/6th share in the suit field. He also directed defendants Nos. 1 and 2 to put the plaintiffs in joint possession of their 5/6th share in the suit field. It is against that decree that the present decree has been filed.