SANGNATH Vs. BABU

JUDGEMENT

(1.) Present appeal has been filed by original defendants No.2 to 4. Present respondents No.1 and 2 are the original plaintiffs who had filed Regular Civil Suit No.284 of 1982 for partition and separate possession. They were minors at that time and therefore the suit was filed through their cousin brother as next friend. Original defendant No.1 is the father of plaintiffs. Their mother had expired about eight to nine years prior to the suit. It was contended that, plaintiffs and defendant No.1 are the members of joint Hindu family. However after the wife expired, defendant No.1 did not pay attention to the family. He got addicted to liquor and Ganja and in order to fulfill his vices, he started selling the joint Hindu family properties. It is stated that, there was absolutely no necessity for defendant No.1 to sell the lands. Agricultural land bearing Survey No.91/A admeasuring 5 Acres 20 Gunthas from East-North side situated at village Almala Tq. Ausa Dist. Latur was owned and possessed by defendant No.1 as well as plaintiffs. Out of the said survey number he sold 2 Acres 5 Gunthas land from North-East corner to defendant No.2. It was transferred by defendants No.1 and 5. Defendant No.5 is the brother of defendant No.1. The land which went to the share of defendant No.5 out of Survey No.92 was adjacent to the said 2 Acres 13 Gunthas land and on that count defendant No.5 has been made as party to the proceeding. It is stated that, thereafter in the year 1976, defendant No.1 sold Eastern side 2 Acres 12 Gunthas land adjacent to the rivulet (Nala) to defendant No.3 and further 1 Acre 3 Gunthas land from North side was sold to defendant No.2 in 1977. Both these transactions are not for legal necessity and they are not binding on the share of the plaintiffs. Defendant No.2 has further given the said land to his son defendant No.4, and therefore he has been made party to the proceeding. Since the plaintiffs have birth right in the suit properties, they have filed suit for partition and separate possession to the extent of their share i.e. 2/3rd.

(2.) Defendants No.2 to 4 have filed written statement and denied the contents of the plaint. It is stated that, the suit could not have been brought through 'next friend', when the guardian of the minor plaintiffs is alive and he is defendant No.1. They denied that, defendant No.1 is addicted to liquor and in order to satisfy his vices, he has sold out the lands. It is stated that, out of Survey No.91/A/1 and 91/A/8 admeasuring 3 Acres 15 Gunthas came to the share of defendant No.1. It is denied that, in 1972 defendants No.1 and 5 have sold the North-East 2 Acres 5 Gunthas land out of Survey No.91/A to defendant No.2 without any legal necessity. It is stated that, at that time defendants No.1 and 5 were residing jointly and they had taken decision to sell out the said portion. That sale deed is binding on the plaintiffs. Defendants No.1 and 5 were joint till 1974 and thereafter they partitioned the lands as it appears from the 7/12 extracts. It is stated that, the land which was near to the rivulet (Nala) was barren and was not giving any income to defendant No.1 therefore he sold it in 1977 to defendant No.2. It was for the necessity of the family. So also on 20-05-1976 the portion of the land was sold to defendant No.3, as defendant No.1 was not having bullocks and other agricultural implements to cultivate the land. Therefore according to the defendants No.2 to 4, the lands have been sold for legal necessity, and therefore, those transactions are binding on the plaintiffs.

(3.) Taking into consideration the evidence on record and hearing both sides, the learned Civil Judge, Junior Division, Ausa Dist. Latur partly decreed the suit on 06-09-1988. Plaintiffs were held entitle to get 2/3rd share from land Survey No.91/A to the extent of 1 Acre 3 Gunthas and 2 Acres 12 Gunthas which were sold in the year 1976 and 1977.