FAKIRA ZANGOJI BAWANE Vs. KHUDEJABI W/O EHSANALI

JUDGEMENT

(1.) By this Second Appeal, the Original Defendant no.2 has challenged the reversing judgment dated 14.01.1992 delivered by the Additional District Judge, Akola in Regular Civil Appeal No. 32/1990. The said appeal was filed by the present respondents/original plaintiffs challenging dismissal of their suit i.e. Regular Civil Suit No. 149/1985 by the Civil Judge, Junior Division, Akot on 29.11.1989. The suit was filed by their predecessor in title namely Ehsanali against the present appellant and his real brother by name Vishwanath for declaration of his joint ownership and for separate possession of said portion by effecting partition. The Trial Court found that the plaintiffs could not establish their title on the basis of sale deed dated 28.09.1983 i.e. Exh.38 and hence it dismissed the suit. The Lower Appellate Court found that the original plaintiff . Ehsanali had purchased 1/3rd portion which was left with Vishwanath after he sold his 2/3rd portion to defendant no.3 i.e. present appellant. It therefore, decreed the suit accordingly by working out equities.

(2.) The question raised by Advocate Shri Mehadia appearing for appellant, for consideration before this Court is . Whether the said exercise undertaken by the Lower Appellate Court in holding that after Vishwanath sold some property to Fakira vide Exh.49 on 08.04.1980, any share or 1/3rd share was left with Vishwanath so as to enable him to transfer it to Ehasnali vide Exh.38 on 28.09.1983, is supported by pleadings and case of parties.

(3.) It is to be noted that this Court has on 02.08.1993 admitted the Second Appeal without formulating any specific question as substantial question of law, but after noticing that substantial questions drafted as such at sr.no.1 to 6 in memo of second appeal arise for consideration. The question mentioned above springs from those questions.