RAMCHANDRA JAGANNATH NAGPURKAR Vs. ANJANABAI BALRISHANA NAGPURE

JUDGEMENT

(1.) The second appeal was admitted on the following substantial questions of law:

(2.) Few facts giving rise to the second appeal and to the afore-stated substantial questions of law are stated thus-

(3.) Ramchandra filed the written statement and denied the claim of Anjanabai. It was the case of Ramchandra that the plot was sought to be allotted in the names of Balkrishna and Ramchandra and an application was jointly made by both the brothers to the Nagpur Improvement Trust, for allotment of the suit property. The Nagpur Improvement Trust had granted the loan amount in the name of Balkrishna as it was not possible to take the loan in the names of two persons. The hire purchase agreement was also in the name of Balkrishna for the same reason. According to Ramchandra, both the brothers started residing in the suit house since the year 1964. There was a mutual understanding between the brothers and in the year 1977, a Samjhautapatra was executed in the presence of five panchas. It is the case of Ramchandra that both the parties had accepted the joint ownership of Balkrishna and Ramchandra over the suit property by the said Samjhautapatra. It is pleaded by Ramchandra that the brothers applied to the Nagpur Improvement Trust for mutation of their names, but the Nagpur Improvement Trust asked Ramchandra and Balkrishna to apply and obtain the permission of the Urban Land Ceiling authorities. Accordingly, the permission was sought and the same was granted by the authorities. A Deed of Declaration was executed between the parties on 18/8/1977 accepting the terms of the Samjhautapatra. The Nagpur Improvement Trust had informed Balkrishna and Ramchandra that it would be proper to execute the lease deed in favour of only one person and later on, Balkrishna may transfer a part of the property in favour of Ramchandra. The lease deed was to be executed after the repayment of the loan. However, before the execution of the lease deed, Balkrishna expired on 29/5/1981. According to Ramchandra, Anjanabai submitted an application to the Nagpur Improvement Trust for executing a lease in her favour, on 22/9/1982. Since the lease deed was executed in favour of Anjanabai, Ramchandra had filed a civil suit in the year 1983 for a declaration that he had half share in the leasehold property. The suit was registered as Regular Civil Suit No. 202/1983. Ramchandra also sought a partition of the suit property. However, the suit filed by Ramchandra was dismissed and Ramchandra preferred a first appeal against the judgment passed by the trial Court. The first appeal was numbered as First Appeal No. 64 of 1986. During the pendency of the first appeal, an application was filed by Ramchandra for withdrawal of the suit with liberty to file a fresh suit. The first appellate Court, by an order dated 23/3/1993, permitted Ramchandra to withdraw the suit and granted liberty to file a fresh suit in case it was necessary to do so.