NATHMAL JODHARAJ Vs. CHANDRARAO VIJAYSINGH DESHMUKH

JUDGEMENT

(1.) This appeal by original defendant No. 29 under section 96 of Code of Civil Procedure challenges the judgment and decree dated 30th April, 19,62 delivered by Civil Judge (Senior Division) , Achalpur, in Special civil Suit No. 7a of 1954 filed by present respondent No. 2 and her son i. e. present respondent No. 1 for redemption of mortgage and specific performance of agreement to reconvey the property. Division Bench of this Court on 23-6-1971 disposed of this appeal along with First Appeal No. 93 of 1962 filed by narayanrao i. e. original defendant No. 3 and First Appeal No. 20 of 1963 filed by taradevi, original defendant No. 1 who happens to be mother-in-law of present respondent No. 2. Division Bench found that the matter was compromised and hence in view of said agreement of compromise between original plaintiffs on one hand and original defendant No. 3 on the other hand, it modified the decree of trial Court accordingly. Defendant No. 29 in said suit and appellant in present appeal then approached Hon'ble Apex Court in Civil Appeal No. 837 of 1972 complaining that his grounds of attack were not affected by said agreement of compromise and Division Bench could not have disposed of his Appeal in its light. By order dated 2-4-1998, Hon'ble Apex Court accepted his grievance and after noticing that present appellant was not consenting party to the said disposal by High Court, remanded this appeal back for decision on merits preferably within a period of six months. It appears that original appellant before this Court expired on 8-11-1998 and as his legal heirs were not brought on record, on 9-3-2000 the appeal was disposed of as abated. The abatement was set aside by condoning delay and appeal was restored back by order dated 6-5-2004 and thereafter legal heirs of respondent No. 4 and of respondent No. 5 were required to be brought on record. It appears that in these circumstances the matter remained pending.

(2.) The brief facts giving rise to this appeal may now be stated. Suit properties consisted of 16 fields spread over four different villages and two house properties situated at Amravati belonging to Madhao-husband of original defendant No. 1 and respondent No. 3 Taradevi in this appeal. On 21-2-1946 he executed a sale deed in respect of all these properties in favour of respondent no. 4 deceased Vitthalrao who was defendant No. 2 in suit for consideration of rs. One lakh. The sale deed was registered on 2-3-1946 and on same day vitthalrao also executed an agreement in favour of Madhaorao agreeing to resell all these properties back to Madhaorao on receipt of aforesaid amount of Rs. 1 lakh. Madhaorao died on 15-11-1948. After his death, his widow Taradevi adopted Vijaysingh as a son on 17-11-1949. Vijaysingh died on 30-9-1952 leaving behind his widow Vijay Laxmi (original plaintiff No. 2 and present respondent No. 2). On 2-1-1954, Vijay Laxmi adopted original plaintiff No. 1 and present respondent No. 1 Chandrarao as son to her husband. In the meantime, defendant No. 2 Vitthalrao sold away many of the properties purchased by him from Madhaorao to different purchasers and thereby recovered total amount to rs. 68,579/-only. Balance amount payable to him under the agreement of resell was thus reduced to only Rs. 31421/ -. For this amount, he executed a sale deed at exhibit P-14 = Exh. 3-D-6 in favour of original defendant No. 3 Narayanrao (deceased respondent No. 5 in this appeal) on 27-6-1951. This sale deed included 10 fields and one house. Present appellant i. e. original defendant No. 29 filed civil Suit 62a/1953 claiming right of pre-emption on 19/24th share of Survey no. 56 of Mouza Talwel and for its possession against deceased Narayanrao and succeeded in view of judgment dated 29-7-1953 delivered therein in his favour. Present Civil Suit 7a/1954 came to be filed on 1-7-1954 by respondents No. 1 and 2 in this appeal for redemption or in the alternative for specific performance of agreement of reconveyance. This suit came to be decreed on 30-4-1962. Civil court granted declaration that sale dated 27-6-1951 in favour of defendant No. 3 was in nature of mortgage and nothing was due to be received by him under said mortgage. Defendant No. 3 was accordingly directed to deliver possession of properties comprising that sale deed except three properties in 2 villages. Defendant No. 3 and defendant No. 29 (present appellant) were further directed to deliver possession of 19/24th portion of Survey No. 56 at Talwel to present respondents No. 1 and 2.

(3.) Original defendant No. 3 challenged this judgment and decree in First appeal No. 93 of 1962. Original defendant No. 1 and present respondent No. 3 taradevi approached in First Appeal 20 of 1963 asking for the decree of possession in her favour jointly with original plaintiffs as her one-half share in the property was found to be not in dispute. Present appeal came to be filed by original defendant No. 29 aggrieved by direction to hand over possession of survey No. 56. All three appeals came for hearing before Division Bench of this court on 23-6-1971 and during hearing original defendant No. 3 expressed his desire to remit the amount of Rs. 11,000/- (as claimed) in favour of original plaintiffs provided original plaintiffs conceded to one-half share of Taradevi and to decree for possession along with her. Said offer came to be accepted by original plaintiffs and hence, First Appeal 93 of 1962 filed by original defendant no. 3 Narayanrao came to be dismissed for non prosecution. In the light of this compromise or agreement, Division Bench modified the decree of trial Court and after noticing that original plaintiffs had already succeeded in recovering the possession of properties in execution of very decree, it directed original plaintiffs to put original defendant No. 1 Taradevi in possession of her one-half share and by consent of parties directed separation of that share by equitable partition in execution as per law. In relation to present appeal, Division Bench observed that as sale in favour of original defendant No. 3 was itself subject to an agreement of resell as found by trial Court, as said defendant No. 3 himself could not resist original plaintiffs' claim for possession, the rights of defendant No. 2 in the matter could be no better. Division Bench, therefore, dismissed his appeal i. e. present appeal.