MAITABKHAN Vs. BABURAO

JUDGEMENT

(1.) The present appeal is preferred by the original plaintiff Maitabkhan Yakubkhan Pathan against dismissal of his suit (Regular Civil Suit No. 73/1980) for permanent injunction, alternatively for possession and damages by the Additional District Judge, Bhandara in Regular Civil Appeal No. 29/ 1987 by setting aside the judgment and decree passed by the Civil Judge, Junior Division, Sakoli in favour of the present appellant.

(2.) The dispute relates to the land bearing Gat No. 242, Khasra No. 132/2, area 0.50 acre situated at village Bhugaon, tahsil Sakoli, district Bhandara which was owned by Tukdu Kisan Nandagaoli (here-in-after referred to as "D-3 Tukdu"). It seems that on 26.6.1967 D-3 Tukdu agreed to sell the said land to Vithoba Sitaram Nandagaoli (hereinafter referred to as .D-2 Vithoba.). However, on 28.6.1967 D-3 Tukdu sold it to Baburao Motiram Nandagaoli (hereinafter referred to as "D-l Baburao"). Soon thereafter D-l Baburao obtained possession of the said land. On 17.7.1967 Vithoba (D-2) instituted Regular Civil Suit No. 142/1967 against Tukdu (D-3) and Baburao (D-l) for specific performance of agreement of sale. The said suit was decreed in favour of Vithoba on 3.11.1969. It is not known as to whether in pursuance of the said judgment and decree, sale deed came to be executed in favour of Vithoba. However, it came in evidence that Vithoba obtained possession of the said land.

(3.) On 17.2.1971 D-2 Vithoba and D-3 Tukdu agreed to sell the said land toMaitabkhan (the plaintiff). According to plaintiff Maitabkhan, he paid full consideration and possession of the land was also delivered to him. On 25.3.1971 plaintiff Maitabkhan was imprisoned in connection with a murder for about 5 years. Taking advantage of the absence of plaintiff Maitabkhan, D:l Baburao got his name mutated in the revenue record. After plaintiff Maitabkhan was released from Jail, D-2 Vithoba and D-3 Tukdu executed sale deed (Exh. 77) in favour of plaintiff Maitabkhan on 3.4.1978 and delivered possession of the land to plaintiff Maitabkhan.