ONKAR Vs. SHAMRAO SHIVRAO PALHADE

JUDGEMENT

(1.) THE substantial question of law formulated at the time of admission of second appeal and which needs to be decided is "whether the Appellate Court erred in Applying the principle of "feeding the estoppel" to the case of respondent No. 1 and, therefore, holding that the respondent No. 1 proved the title over the house property. "

(2.) THE relevant facts giving rise to the aforesaid substantial question of law are that respondent No. 1 Shamrao (for short "original plaintiff") filed a suit for possession of suit house and the agricultural land against respondent No. 2 Arjun (for short "defendant No. 1"), present appellants Onkarnath and Vasant (for short original "defendants 3 and 4") and Smt. Janabai (since deceased - original defendant No. 2 ). The plaintiff also claimed arrears of rent and damages in respect of suit house amounting to Rs. 155/- and mesne profits of past two years amounting to Rs. 300/- from defendants 1 and 2 and enquiry into future mesne profits. The claim of the plaintiff was based on the ground that defendant No. 1 Arjun, owned disputed property had sold the same to the plaintiff by way of registered sale-deed dated 26-12-1969 for a consideration of Rs. 1,000. According to the plaintiff, after the purchase of the property, he leased the suit house to Arjun at a monthly rent of Rs. 5/- on first of January, 1970 and so far as the agricultural land was concerned, it remained in possession of the plaintiff. The details of house was mentioned in para 1 (a) of the plaint. The plaintiff further averred that the defendant Arjun did not pay rent regularly and became in arrears of rent, which necessitated the plaintiff to file the suit for recovery of arrears of rent and the said civil suit was decreed ex parte on 28-7-1972 by the Civil Judge, Junior Division, Jalgaon-Jamod. Thereafter, by legal notice dated 1-3-1973, plaintiff determined the tenancy of defendant No. 1 of the suit house with effect from 1-4-1973 but the defendant failed to deliver the possession of the house. Defendants 2, 3 and 4 were joined as parties since they were enjoying possession of the suit house. During the pendency of the suit in the year 1973, defendant No. 2 died and her name was deleted from array of parties.

(3.) THE defendant No. 1 did not contest the suit and suit proceeded ex parte against him. Defendant No. 3 filed his written statement and denied the averments made in the plaint. Defendant No. 4 contested the suit by filing written statement and setting up a plea that the property originally belonged to one Vithal (father of defendant No. 1 - Arjun) and he died about 15 years ago leaving behind his widow Janabai - original defendant No. 2 and three sons viz. Shriram, Ramrao and Arjun. According to defendant No. 4 Onkar Ramrao died without leaving any heir. Shriram died about 5 years ago leaving behind his widow and son Bhimrao and according to defendant No. 4, therefore, Arjun alone was not the owner of the property. In this view of the matter, defendant No. 4 challenged the right and title of defendant No. 1 - Arjun to transfer the entire property to the plaintiff. Defendant No. 4 also claimed that he was bona fide purchaser of the suit house from Arjun vide registered sale-deed dated 8-7-1971 and that of the Agricultural land from Arjun and Janabai under sale-deed dated 13-1-1972.