HEMADAS PREMDAS RANBAKUDA Vs. SURAJBAI

JUDGEMENT

(1.) The original plaintiff has challenged the judgment and decree dated 22-4-1992 delivered by the Additional District Judge, Bhandara in Regular Civil Appeal No. 128/1990. The said appeal was filed by the present respondent No. 1 Smt. Surajbai challenging the judgment and decree dated 20-8-1985 delivered by the Civil Judge, Junior Division, Sakoli in Regular civil Suit No. 189/1981 whereby the suit filed by the original appellant came to be decreed. The original appellant has expired during the pendency of the appeal and on 20-2-1998 his legal heirs 1 (A) to 1 (E) have been brought on record. The appellant No. 1 (C) Babudas expired on 24-6-2007 and his legal heirs one Hemin and Dharamdas filed Civil Application No. 1916/2008 for coming on record. The application is within time and it has not been opposed by other side, hence the same is allowed. Necessary amendment be carried out within three days.

(2.) The original appellant Premdas, filed Regular Civil Suit for declaration and injunction. He contended that suit field bearing gut No. 139, admeasuring total 7. 92 Acres or 3 H. 20 R was in his possession and his possession could not have been disturbed by other defendants, particularly defendant No. 1 Surajbai, his ex-wife. His case was said land belonged to his mother Kundanbai and after her death he was entitled to succeed to it. The defendant No. 1 before the trial court was his ex-wife while defendant No. 2 was his daughter-in-law. Defendant no. 3 was his grand-son, while defendant No. 4 was his sister. The plaintiff -Premdas contended that because of wrong action on the part of the Consolidation officer in issuing a certificate under, section 24 of the Bombay Prevention of fragmentation and Consolidation on Holdings Act, 1947 (hereinafter referred to as "the 1947 Act" for short) , only in the name of his son Chudaman, his ex-wife surajbai was trying to take advantage of situation which arose after the death of chudaman. Chudaman expired on 9-7-1981 and thereafter name of defendant no. 1 Surajbai and defendant No. 2 Kesarbai was recorded in the revenue records as owners of this land. Original plaintiff pointed out that widow of his son chudaman, his grand-son were residing with him as members of his family. The trial Court framed issues and found that certificate issued under section 24 of the 1947 Act, could not transfer title in favour of Chudaman and therefore after death of Kundanbai, her son became owner. It accordingly decreed the suit. Regular civil Appeal was filed by Surajbai alone and Lower Appellate Court has found that Kundanbai orally gifted suit property to son of original plaintiff i. e. to chudaman. It also found that registration of said certificate under section 24 of the 1947 Act, cured the defects in oral gift and it was in compliance with the provisions of section 123 of Transfer of Property Act. It therefore, allowed the regular Civil Appeal filed by Surajbai and dismissed the Civil Suit of original plaintiff. Thereafter this Second Appeal has been admitted on 3-8-1993 by mentioning that ground Nos. 12 and 13 in memo of appeal shall be the substantial questions of law for its adjudication. Those grounds are as under :-

(3.) In nut shell the issue is to find out whether certificate under section 24 of the 1947 Act, can confer ownership upon Chudaman and divest original plaintiff premdas of the suit property. There is no dispute about description of the suit property between the parties.