ABASAHEB KHANDU BORUDE Vs. SHESHNARAYAN BABU BORUDE

JUDGEMENT

(1.) Present appeal has been filed by the original plaintiff challenging the Judgment and Decree in Regular Civil Appeal No.394/2012 (old First Appeal No.2282/2010 before this Court) dated 21.08.2015, thereby the appeal filed by the present appellant came to be dismissed. In the said appeal before the First Appellate Court, the appellants had challenged the Judgment and Decree passed in Special Civil Suit No.37/2007 (old Regular Civil Suit No.63/2004) by Civil Judge Senior Division, Ahmednagar on 04.08.2010.

(2.) In the said suit the plaintiffs were seeking right of preemption under Section 22 of the Hindu Succession Act. Plaintiffs had come with the case that plaintiffs and defendant Nos.1 and 2 had common ancestor. Plaintiff No.1 and predecessor of defendant Nos.1 and 2 deceased Babu were the real brothers. The suit property i.e. agricultural land bearing Sy.No.169/1E admeasuring 2 Hectares 80 Ares, Sy.No.111/1/2 area admeasuring 78 Ares, Sy.No.110/6 area admeasuring 16 Ares, Sy.No.110/4 area admeasuring 3 Ares including common well in Sy.Nos.110/4 and 169/1E were the Joint Hindu Family properties. Those lands were mutated in the name of deceased Babu, who was elder brother of plaintiff No.1. Plaintiff No.1 had filed R.C.S. No.166/1978 for injunction. In the said suit deceased Babu was restrained from alienating the suit lands. Further, he was directed to sell the suit lands to plaintiff No.1, if he offers the price as per the market rate. Plaintiff No.1 had also filed another suit i.e. R.C.S. No.165/1991 for partition. The said suit came to be decreed. As per the said decree, the half share in the ancestral properties was carved out, which went to the share of plaintiff No.1. It is stated that the details of the partition how effected has also been given. It is also stated that some of the property went to the share of deceased Prayagbai, Radhabai and Gayabai, who were the heirs of deceased Khandu and Anusayabai. However, Prayagbai had bequeathed her share to plaintiff No.1. Plaintiff No.1, Radhabai and Gayabai had got the land mutated in the name of plaintiff No.4 vide Mutation Entry No.6911. It has been contended that plaintiffs have right of preemption to purchase the said land as the defendant Nos.1 and 2 intended to sale out the land. Plaintiff Nos.1 to 4 had met them on 27.04.2004 and offered price. However, the defendant Nos.1 and 2 did not respond. They have sold out the said properties to defendant Nos.4 and 5. It is stated that defendant Nos.1 and 2 were residing at a different place and the entire suit properties were held by plaintiffs. Therefore, defendant Nos.4 and 5 have not received possession of the suit lands. Under such circumstance, they say that the sale deed in favour of defendant Nos.4 and 5 is not binding on them. They have right to purchase the said land and hence suit.

(3.) Defendant Nos.1 and 2 have filed their written statement. It has been contended that they have executed the sale deed out of legal necessity in order to meet the expenses. It is stated that the decrees which were obtained against Babu are not binding on them. Defendant Nos.4 and 5 have filed their separate written statements. It was denied that the suit properties were ancestral or Joint Hindu Family properties and the plaintiffs are still the coowners. It was also contended that the plaintiffs are not classI heirs with respect to defendant Nos.1 and 2 to have their rights executed against defendant Nos.1 and 2. It was also denied that the sale deeds are not hit by provisions of the Bombay (Prevention of Fragmentation and Consolidation of Holdings) Act.