SHALINIBAI TRIMBAKRAO BEGDE Vs. NARAYAN HARNAJI BHALME

JUDGEMENT

(1.) Heard learned advocate for the appellants, the respondent Nos. 1, 4 and 5. None present for the remaining respondents though served. This appeal arises from the Judgment dated 28-1-1987 passed by the learned Single Judge in First Appeal No. 88/1967. The learned Single Judge while allowing the said first appeal has set aside the decree of dismissal dated 1-2-1967 passed by the Civil Judge, Senior Division, Chandrapur in Special Civil suit No. 16/1965.

(2.) The trial Court had dismissed the suit on merits as well as on the point of limitation, whereas the learned First Appellate Court held the suit to have been filed within the period of limitation and further directed partition of the land with direction to defendants to put the plaintiff in possession of his half share in the suit property and further direction for enquiry regarding the mesne profits.

(3.) Few facts relevant for the purpose of decision are that : The property bearing Survey Nos. 57, 58, 60 and 158 having total area of 51. 13 acres, out of which 25. 50 acres of area, is the subject-matter of the present dispute. On 5-10-1949, the appellant who was the original defendant No. 1 in the suit had borrowed sum of Rs. 5000/- from the respondent No. 1 who was the original plaintiff, and had executed a Deed in relation to the suit property for sum of Rs. 5700/ -. The suit property was resold to the appellant by the respondent No. 1 by sale deed dated 1-6-1950. Again on 20-9-1951 the appellant borrowed a sum of rs. 6000/- from the respondent and executed a deed in favour of the respondent no. 1 in relation to the suit property for a sum of Rs. 7500/ -. At the same time an agreement was executed for re-conveyance of the suit property to the appellant on repayment of the said loan on or before 3-6-1952. As the said loan was accordingly repaid, the respondent No. 1 executed a sale deed dated 3-6-1952 in respect of the suit property conveying the same in favour of the appellant for a sum of Rs. 7500/ -. Thereafter, on 27-8-1952 the appellant again borrowed a sum of Rs. 8000/- from respondent No. 1 and executed a sale deed in respect of the suit property for a sum of Rs. 10,000/-, while executing a separate document as kararnama agreeing to repay the loan on or before 6th of June, 1953 and thereupon the respondent No. 1 agreeing to re-convey the suit property in favour of the appellant. In spite of execution of such sale deeds since 1949 and even after execution of sale deed dated 27-8-1952, the possession of the said property continued with the appellant. The appellant failed to repay the loan amount of Rs. 10,000/- by 6-6-1953. The parties thereupon on mutual oral agreement delivered the possession of 12 acres 33 gunthas out of the total area of 25. 46 acres to the respondent No. 1, so that he could enjoy crops therefrom for 12 years and thereby appropriate the income towards the repayment of loan and on expiry of 12 years to redeliver the possession to the appellant. Since then the half of the suit property had being retained by the respondent No. 1 while remaining half was being enjoyed and possessed by the appellant. On 26-8-1964, the respondent no. 1 filed suit before the Civil Judge, Junior Division, Warora seeking the possession of the remaining half of the suit property on the ground that the same was already sold to the respondent No. 1 under the sale deed dated 27-8-1952. The suit thereafter was withdrawn as the valuation of the suit was shown as rs. 25,000/- which was in excess of the jurisdiction of Civil Judge, Junior Division and the same was presented in the Court of Civil Judge, Senior Division, chandrapur and it was registered as Special Suit No. 16/1965. Trial Court after hearing the parties, by decree dated 1-2-1967 though dismissed the suit being barred by law of limitation, held that the plaintiff had otherwise good case on merits against the defendants. The matter was carried in appeal by the respondent no. 1 being First Appeal No. 88/1967 and the learned Single Judge of this Court by the impugned judgment and decree allowed the appeal as stated above. It is also to be noted that meanwhile the respondent No. 1 sold the area of 70 decimal of survey no. 158 in favour of the respondent No. 5. Further on 14-7-1961, the respondent no. 1 sold an area of 2. 50 decimals from survey No. 158 to the respondent Nos. 6 and 7 for a sum of Rs. 4,000/ -. Again on 14-3-1963 the respondent No. 1 sold one acre of land out of survey No. 158 to the respondent No. 8 for a sum of Rs. 1500/ -. Further in July, 1964 the respondent No. 1 sold to respondent No. 9 the area of 1. 50 acres out of survey No. 158 for a sum of Rs. 3000/ -.