PARWATIBAI RAMAJI KALE Vs. KISAN VITHOBA KALE

JUDGEMENT

(1.) By these Second Appeals, Parwatibai wife of Ramaji Kale, who was plaintiff in one suit and defendant No.4 in another suit has challenged the reversing judgments delivered by lower appellate Court in appeal filed by original Respondent No.1 Vithoba. Two civil suits i.e. Regular Civil Suit No.47 of 1981 and Regular Civil Suit No. 49 of 1981 have been decided together by Civil Judge, Senior Division, Washim on 31.3.1988. Regular Civil Suit No.49 of 1981 was filed by Vithoba against Ramaji, his wife Parwatibai (present appellant) and others for declaration and permanent injunction on the basis of sale deed (Exh. 76) executed on 3.11.1980 by Ramaji in his favour. He sought recovery of possession also in that suit. Regular Civil Suit No.47 of 1981 was filed by Parwatibai against Vithoba and Ramaji for declaration that registered Sale Deed dated 3.11.1980 executed by Ramaji in favour of Vithoba was illegal and not binding on her. The trial Court framed various issues and decreed the suit filed by Vithoba partly by asking Ramaji to refund to him amount of Rs.10,000/-. The copy of said judgment was directed to be placed on record as judgment in Regular Civil Suit No.47 of 1981. The trial Court held that Ramaji had, prior to Exh. 76, sold suit property on 16.10.1980 to his wife Parwatibai and therefore Parwatibai was legal owner and entitled to remain in possession. Vithoba filed Regular Civil Appeal No.213 of 1989 against the judgment and decree in Regular Civil Suit No.49 of 1981 and Regular Civil Appeal No. 212 of 1989 was filed against the adjudication in Regular Civil Suit No. 47 of 1981. Both these appeals have been decided together by judgment dated 12.11.1992 by Additional District Judge, Washim. The Additional District Judge, Washim, found that sale deed dated 16.10.1980 executed by Ramaji in favour of his wife Parwatibai was only with a view to dupe Vithoba and it therefore decreed the suit of Vithoba and dismissed suit filed by Parwatibai. Against this common judgment of lower appellate Court, Parwatibai has filed these two Second Appeals. Second Appeals have been admitted on 16.3.1993 by mentioning that ground Nos. 2 & 6 in appeal memo shall be substantial questions of law.

(2.) In this background, I have heard Shri P.A. Deshmukh, learned counsel for the appellant and Shri Deshpande, learned counsel for the respondents.

(3.) Shri Deshmukh, learned counsel has contended that the lower appellate Court has approached the controversy with prejudiced mind. According to him, the trial Court has considered the questions with open mind. He states that as sale deed dated 16.10.1980 (Exh. 100) was first in point of time, its validity ought to have been examined first by lower appellate Court also as has been done by trial Court. He states that if said sale deed is found to be valid, nothing was left with Ramaji to transfer to Vithoba on 3.11.1980 vide Exh. 76. He contends that in view of this finding delivered by the trial Court, it is apparent that controversy regarding real nature of transaction between Ramaji and Vithoba becomes irrelevant. He further contends that question whether any consideration was paid by Vithoba to Ramaji also becomes irrelevant. He argues that sale transaction or money lending transaction between Ramaji and Vithoba is totally independent of sale deed between Ramaji and Parwatibai and by mixing these two events together, because of its prejudice, lower appellate Court has avoided to exercise jurisdiction available to it under Section 96 of Civil Procedure Code. He further contends that evidence on record clearly established need of Ramaji and also fact of advance of Rs.5,000/- to him by brother of Parwatibai and condition imposed by said brother that suit land should be transferred by Ramaji in the name of his sister Parwatibai. He points out that such insistence of brother of Parwatibai is found to be natural by trial Court and sale transaction Exh. 100 is the result of such insistence. He states that once sale deed (Exh. 100) is accepted to be legal and valid, the sale deed of Vithoba (Exh. 76) has to fall to ground.