JAGANNATH SAKHARAM SAHALE Vs. VASUDEO VYANKATESH KANADE

JUDGEMENT

(1.) Original defendant Nos. 3 and 4 preferred this second appeal against the judgment and decree passed by the learned District Judge, Satara, in Regular Civil Appeal No. 173 of 1975 dismissing the appeal preferred by them against the judgment and decree passed by the learned Joint Civil Judge, (Junior Division), Satara, in Regular Civil Suit No. 49 of 1971 decreeing the plaintiffs claim for partition and separate possession of their 5/6th share in the suit property.

(2.) Respondent Nos. 1 to 4 (plaintiff Nos. 1 to 4) filed Regular Civil Suit No. 49 of 1971 in the Court of the Joint Civil Judge, J.D., Satara, for a declaration that a sale transaction by respondent No. 5 (defendant No. 1) in favour of the present Appellants (defendant Nos. 3 and 4) executed on 26th August, 1970 was void ab initio and also for partition and possession of their 5/6th undivided share in the suit property. The suit property consists of an agricultural land bearing S. No. 157/1A area 4 acres 38 gunthas and later on corrected to 3 aces 22 gunthas and allotted Gat No. 414 situate at Village Malgaon in Satara District. Defendant No. 1 Keshavacharya Bhawacharya Kanade sold the suit land to defendant Nos. 3 and 4 who are Appellants before this Court for Rs. 2,200/- by a registered sale deed dated 26th August, 1970, Exh. 140. The relations of the plaintiff and defendant Nos. 1 and 2 are as per the genealogical table set out below : Madhavacharya <FRM> ------------------------------------------------ | | Venkatacharaya Gopalacharya (died 1909) ------------------------------ | | | ---------------------------------------------- Modhava Govind | | | charya charya Bhavacharya Shriniwas Vasudev | (died 1918) (dead) (plff. 1) Rangnath Gangabai (dead) (plff. 2) ----------------------------- | | Keshav Hari (deft. 1) (died 1966) | ----------------------------- Narsingh | | (deft. 2) Jagannath Vimal (plff. 3) (plff. 4) (dead) </FRM> The case of the plaintiffs was that the suit property was the joint family property of the plaintiffs and defendant Nos. 1 and 2 and, therefore, defendant No. 1 had no right to sell the property and the sale effected by him was not binding on 5/6th share of the plaintiffs property. They also contended that defendant Nos. 3 and 4 brought about the sale-deed by practising fraud on defendant No. 1 and 2 by their common written statement Exh. 30 opposed the claimed of the plaintiffs. They denied the plaintiffs averment that there was joint Hindu family in existence at the time defendant No. 1 executed the impugned sale-deed, Exh. 140, in favour of defendant Nos. 3 and 4. According to those defendants there was a family partition in 1943 and on 10th July, 1953 defendant No. 1, plaintiff No. 1 the deceased Hari drew a memorandum of partition. The land S. No. 157/1B sold to Sarjerao Kadam was allotted to the share of plaintiff No. 1 and the suit land was allotted to the share of defendant No. 1. However, in the memorandum of partition it was wrongly stated that the suit land came to the share of plaintiff No. 1. Defendant Nos. 1 and 2 contended that defendant No. 1 was in the exclusive enjoyment of the suit land and he initiated tenancy, proceedings and obtained possession of the suit land In his own right as the owner thereof and sold the suit land as owner to defendant Nos. 3 and 4. Thus defendant Nos. 1 and 2 supported the sale of the suit land effected by defendant No. 1 in favour of defendant Nos. 3 and 4. Defendant Nos. 3 and 4 by their joint written statement Exh. 31 resisted the suit. They contended that the suit land was exclusively owned and possessed by defendant No. 1 and that they were bona fide purchasers for value without notice. They denied that they practised any fraud on defendant No. 1 for obtaining the sale-deed Exh. 140 from him. The learned trial judge on considering the evidence before him held that there was no partition between the plaintiffs and the defendants 1 and 2. He held that defendant Nos. 3 and 4 practised fraud on defendants No. 1 and obtained sale-deed Exh. 140 in respect of the suit land and as such the sale-deed was void ab initio. He negatived defendant No. 1s contention that he became owner of the suit property by adverse possession. He held that defendant Nos. 3 and 4 failed to prove that they were bona fide purchasers for value without notice. On those findings the learned trial Judge decreed the plaintiffs claim.

(3.) Being aggrieved by the decision of the trial Court, the Appellants (plaintiffs) filed Regular Civil appeal No. 173 of 1975 in the district Court at Satara. The learned District Judge, who heard the appeal, dismissed the same He reversed the finding of the learned trial Judge that there was no partition of the joint Hindu family of the plaintiffs and defendant Nos. 1 and 2. He found that at the time of the execution of the sale-deed Exh. 140 there did not exist joint Hindu family of the plaintiffs and defendant Nos. 1 and 2. He held that it was not proved that in the family partition the suit land fell to the share of defendant No. 1. He also negatived the contention of defendant No. 1 that he became owner of the suit land by adverse possession. On those findings he dismissed the appeal. Original defendant Nos. 3 and 4 being aggrieved by the decision of the District Judge, Satara preferred this second appeal. This appeal was heard by my brother Kantharia, J., on 2nd December, 1985. Before him the learned Counsel appearing for the Appellants raised the following three contentions :