NANASAHEB GUJABA BANKAR Vs. APPA GANU BANKAR

JUDGEMENT

(1.) THIS second appeal has been referred for decision to a Division Bench by Mr. Justice Shah. The ground upon which the case was referred to this Bench was the ground that the case reported in Tribhovan Havgovan v. Shankar Desai, 45 Bom LR 866: (AIR 1943 Bom 431) (A), does not seem to have been correctly decided.

(2.) THE suit giving rise to the appeal was filed by the plaintiff Appa to recover, from the defendants, possession of the suit property which consists of two fields hearing S. No. 22/1-B and S. No. 22/i2-B. It appears that the plaintiff left for Karachi in or about the year 1925 from where he returned in the year 1947. The plaintiff's case is that when he went to Karachi, he left defendant No. 1 in possession of the suit property as the agent of the plaintiff. On the 1st of July 1939, the plaintiff executed a sale-deed in relation to these lands in favour of defendant No. 2 who is defendant No. 1's cousin for the consideration of Rs. 99-15-0. At the date of the sale-deed, the fields were in the possession of the father of defendant No. 4 as a tenant. The plaintiff's case, however, is that defendant No. 1 obtained the signature of the plaintiff upon a blank paper and used that paper for the purpose of the sale-deed of 1st of July 1939. In other words, the plaintiff's case is that the sale-deed of the 1st July 1939 is not a genuine transaction, but it was a fraudulent one. On the 1st of August 1947, defendant No. 2 sold the suit property to defendant No. 3 for Rs. 200 and the case of the plaintiff, again, is that this was a bogus transaction.

(3.) ON 2nd March 1951, the plaintiff commenced this suit against the four defendants upon the allegation that the sale-deed of the 1st of July 1939 was a fabricated document and that neither defendant No. 2 nor defendant No. 3 got any interest in the suit property. Defendant No. 1 remained absent and the suit proceeded against him ex parts. Defendant No. 2 filed a written statement and disputed the plaintiff's claim. He denied that the sale-deed of the 1st of July 1939 was a fraudulent transaction. The contentions of defendant No. 3 were substantially the same as those of defendant No. 2. Defendant No. 4, who is the son of the original tenant, raised similar contentions and added that his father was a tenant of the suit lands since a long lime and that his father continued on the suit lands as a tenant of defendant No. 2 and then as a tenant of defendant No. 3.