RAMA NANA ZINZURKE Vs. PRALHAD DAMODHAR KULKARNI

JUDGEMENT

(1.) This is an appeal by original defendant No. 2 raising exception to the judgment and decree passed by the Second Additional District Judge, Beed on 18-3-1989 in Regular Civil Appeal No. 116/80.

(2.) Suit was instituted by plaintiff being Regular Civil Suit No. 105/75 claiming decree of possession in respect of agricultural land founded upon exercise of preferential right of purchase by him in respect of disputed property. According to plaintiff, he is entitled to exercise his right to purchase the property for consideration of Rs. 10,000/-which according to him is the real consideration amount offered by defendant No. 2 in favour of defendant No. 1. It is the case of plaintiff that originally one Laxmibai Kulkarni was the owner of land survey No. 6/2 of Village Dhamangaon and had alienated the same in favour of plaintiff and defendants jointly for consideration of Rs. 9,500/- on 29-10-1965. According to plaintiff, he is holding the property jointly with defendant No. 1. It is alleged that defendant No. 1 executed a sham and bogus sale-deed in respect of his half joint share on 10-4-1973 for consideration of Rs. 3,000/- in favour of one Kantilal Kaswa. According to plaintiff, said Kantilal Kaswa was never put in possession of the suit property. However, subsequently, said Kantital Kaswa again re-transferred the land purchased by him in favour of defendant No. 1 for consideration of Rs. 3,000/- by executing sale-deed on 22-3-1974. It is further alleged that defendant No. 1 on the very next day alienated half share in Survey No. 6/2 in favour of defendant No. 2 for consideration of Rs. 10,000/- by executing sale-deed on 25-3-1974. Sale-deed was registered on 19-6-1975. He being the co-sharer of the property, has preferential right to purchase. According to plaintiff, the amount of consideration shown in the sale transaction between defendant No. 1 and 2 to the tune of Rs. 20,000/- is double the amount of actual consideration paid by defendant No. 2. According to plaintiff, therefore, he is entitled to exercise his preferential right in respect of purchase of property from defendant No. 1 by paying consideration of Rs. 10,000/-. According to plaintiff, he protested the action of defendant No. 1 and made demand in presence of panchas and further expressed his willingness to pay consideration amount of Rs. 10,000/-. Second demand, according to plaintiff, was made on 28-6-1975. However, defendant No. 1 refused to accept the demands made by plaintiff and failed to execute the sale-deed in his favour on accepting consideration amount. Hence, plaintiff was constrained to file suit. Plaintiff has also pleaded in the plaint that in Marathwada region formerly under Hyderabad State governed by Nizam, customary law in respect of pre-emption was prevailing and as such right is available to him.

(3.) Defendants resisted the suit by presenting written statement. According to defendant No. 1, plaintiff and defendant No. 1 although purchased the property jointly, they remained in joint possession till March 1968. It is contended by defendants that there is separation of share amongst plaintiff and defendant No. 1. Execution of sale-deed in favour of Kantilal Kaswa and re-transfer of property by Kantilal Kaswa in favour of defendant No. 1 is admitted. However, contention raised by plaintiff that sale consideration shown in the transaction with defendant No. 2 by defendant No. 1 being double the actual price, is specifically denied. Contention raised by plaintiff in respect of demands made by him is also denied by defendant. According to defendants, suit claiming right of pre-emption is not entertainable. Sale-deed according to defendant No. 1 was executed on 26-3-1974 on which date possession was delivered by defendant No. 2. Sale-deed was registered on 19-6-1975. According to defendants, suit presented by plaintiff on 9-7-1975 is beyond the period of one year from the date of delivery of possession by defendant No. 1 and hence, is liable to be dismissed.