SONABAI PUNDALIK SURALKAR Vs. SAVITRIBAI SHIVLAL CHIKATE

JUDGEMENT

(1.) Present appeal has been filed by the original plaintiffs who had filed Regular Civil Suit No. 89 of 2006 before Civil Judge (Junior Division), Jamner, District Jalgaon, for declaration, partition of immoveable property and permanent injunction. The said suit came to be dismissed on 17-07-2009 and the appeal filed by the plaintiffs i.e. Regular Civil Appeal No. 150 of 2009 filed by them before learned Principal District Judge, Jalgaon, came to be dismissed on 27-07-2015. [Parties are referred hereinafter as per their nomenclature before trial Court.]

(2.) The original plaintiffs had come with a case that they and the defendants are the daughters of one deceased Bhika Mahipat Dike. The plaintiffs are the real sisters inter se, whereas the defendants are real sisters inter se and they are step-sisters of each other. Agricultural land bearing Gut no.82/1 admeasuring 04 hectares 96 R situated at village Sheri, Taluka Jamner, District Jalgaon, and house property no.122, 123 and 125 of the same village are the ancestral properties of Bhika. According to them, after death of Bhika, they have become owner of the said properties. Gut no.82/1 was allotted to the mother of the defendants i.e. Bajabai, who was second wife of Bhika; but the said land was never put in possession of Bajabai. It was, in fact, in possession of Bhika and after his death, plaintiffs cultivated the same jointly. Plaintiff no.01 is residing in house no.123 and using house no.122 as cattle shed. She is also using house no.123 for keeping agricultural produce and implements. According to the plaintiffs, after death of Bajabai, they have become absolute owner. It was stated that the marriage between Bhika and Bajabai was null and void and therefore, the defendants, who are legitimate daughters, have no right in the ancestral property of Bhika. Plaintiffs had filed Regular Civil Suit No. 70 of 1994 against the defendants for partition and separate possession. After interim injunction was granted in that matter, there was an attempt to have compromise and accordingly in the meeting held on 26-04-2004, the defendants relinquished their share in favour of plaintiffs, as a result of which, the plaintiffs had withdrawn the said suit by filing Pursis on 27-04-2002. It is stated that the plaintiffs are illiterate and their thumb impression was taken without verifying the contents of the Pursis. The defendants by taking disadvantage of the withdrawal of the suit, got their names mutated in the revenue record and therefore, appeal was filed by the plaintiffs. According to the plaintiffs, at the most, the defendants might be having share in the suit properties; but since the defendants intend to claim absolute ownership, they have filed the suit. Declaration has been sought, that the decree in R.C.S. No.70 of 1994, dated 27-04- 2004 is not binding on them as it was obtained by misleading them.

(3.) The defendants filed written statement and it is stated that after death of mother of the plaintiffs, Bhika had performed marriage with their mother i.e. Bajabai and therefore, marriage between Bhika and Bajabai is legal. Bhika had given suit land Gut no.82/1 to their mother in lieu of maintenance and therefore, Bajabai had become absolute owner of the said property. She was cultivating the same. After she became old, she used to get it cultivated through defendants. After her death, they have become owner of the property. It is also stated that Bhika had allotted house property no.123 and 125 to them during his lifetime. However, their names could not be mutated in the Grampanchayat record. They are in possession of the house property since last 35 to 40 years, with the knowledge of the plaintiffs and the plaintiffs themselves had withdrawn the said suit voluntarily and therefore, the decree is binding on the plaintiffs. The plaintiffs never sought permission to file fresh suit and therefore, present suit is not maintainable.