YESHWANT SHIVRAM PATIL Vs. PANDURANG

JUDGEMENT

(1.) This second appeal has been admitted by this Court by the order passed on 16th April, 2007 on the following substantial questions of law:

(2.) The Appellant, in this second appeal, was the defendant No. 1 in the suit filed by Respondent No. l (plaintiff ). Parties hereinafter are referred to their status as plaintiff and defendants in Regular Civil Suit No. 177 of 1987, for convenience. The plaintiff had sought a relief of declaration that the plaintiff and defendant No. 3 are the owners of the suit field and for recovery of possession from defendant nos. 1 and 2. This suit has been dismissed with costs by the trial Court. This decree was challenged by the plaintiff in Regular Civil Appeal no. 176 of 1993. The 1st Adhoc Additional district Judge, Jalgaon (first Appellate Court), after hearing the parties, allowed the appeal. This judgment of the first Appellate Court is challenged in this second appeal.

(3.) Agricultural land survey No. 13 is converted to Gat No. 203, admeasuring 3 hectare, 92 Ares, situated at village Atwade, taluka Raver, district Jalgaon (suit property), is subject matter of the case on hand. In para 2 of the plaint, a statement is made that the suit land was owned and possessed jointly by one mr. Namdeo Vedu (who is not party to the present suit) and the defendant No. 1. After the demise of Namdeo Vedu his son Shankar acquired ownership to half portion of the suit land and has disposed of said half portion of the suit land to defendant No. 4. In the case on hand, we have no concern with defendant No. 4. It is also mentioned in para 1 of the plaint that defendant No. l had sold out his 1/2 share out of the suit land on 15th October, 1966 to plaintiff, his brother Shashikant Dnyandeo and defendant No. 3, another brother of the plaintiff. It is pleaded that, at the time of this sale deed dated 15th October, 1966, plaintiff, his brother shashikant and defendant No. 3 were minors and were represented by their real mother/natural guardian who purchased the suit property for them (minors ). It is also pleaded, at the close of para 2, that Manormabai, mother of defendant No. 3 and brother Shashikant, had cultivated the land. In para 3, it has been pleaded that, after the sale transaction dated 15th october, 1966 and taking over possession of the suit land, and after about 11/2 year from the said transaction, Shashikant, brother of the plaintiff, died. It was some time in the year 1978-79, cultivation of the suit property by the mother, is pleaded up till 1972-73. It is further pleaded, in para 3, that some where in the month of May, 1973 defendant No. 2 has misrepresented plaintiff's mother and illegally took possession of the suit property. It is also pleaded in para 4, that plaintiff perceived the sale transaction recently. On search of the papers, plaintiff found that defendant No. 1 got recorded his name. It is pleaded, in para 4, that such entries are bogus. Plaintiff, therefore, addressed a notice to defendant Nos. 1 and 2 on 14th September, 1981 by registered post a. D. and demanded possession of the suit property. However, defendant Nos. 1 and 2 have not heeded to the notice, neither have handed over possession of the suit property to the plaintiff. Therefore, the suit for declaration and possession against the defendants, was filed. In para 5, explanation is given as to why defendant No. 3, brother of the plaintiff, is joined as party-defendant as well as reference/pleading is made regarding joining of defendant No. 4 as party defendant. In para 6, it is pleaded that on the date of sale transaction in favour of the plaintiff, he was minor, has attained majority on 8th March, 1979 and, therefore, suit filed by the plaintiff is within limitation.