MATHURABAI Vs. RAMKRISHNA BHASKAR BARVE

JUDGEMENT

(1.) THIS is a Letters Patent appeal by the widow and son, who are legal representatives of the deceased Nilkanth who was original defendant No. 1, from the judgment and decree of Mr. Justice Deo in Second Appeal No. 851 of 1955. The material facts necessary for deciding this appeal are as follows:

(2.) A house belonging to the Deosthan of Prabhu. Dattatraya of Arvi was sold by two of the trustees of the Deosthan, namely, Nilkanth and Boliram (defendants 1 and 2) to the plaintiff Ramkrishna, for Rs. 2000/- on 12-3-1945. The plaintiff was put in possession of the house. On 23-2-1945 the two trustees purchased field No. 17/1 belonging to the plaintiff Ramkrishna, for Rs. 1800/- in 1947, Gangadhar, another trustee of the Deosthan, and one Chintaman, Pujari of the Deosthan, instituted Civil suit No. 8-A of 1947 for a declaration that the sale of the house of the Deosthan in favour of the plaintiff Ramkrishna was void, for possession of the house, and for damages. That suit was decreed, the sale deed of the house of Deosthan having been declared void and not binding on the Deosthan, In that suit the purchaser of the house contended that if the sale deed of the house of the Deosthan was found to be void, the Deosthan should be put to terms and should be ordered to pay Rs. 2000/-, but this plea was also rejected on the ground that the alienee had failed to prove that the Deosthan had received any benefit from the transaction dated 12-3-1945 and on the ground that the alienee had also failed to prove that field No. 17/1 had been purchased out of the consideration for the sale dated 12-3-1945, and the Deosthan obtained a decree for possession of the house unconditionally. Against that judgment in Civil Suit No. 8-A of 1947 there was no appeal. Two and a half years later, in 1951, Ramkrishna. the vendee of the house of the Deosthan, brought the present suit out of which this appeal arises. The Deosthan was impleaded as defendant No. 6. Plaintiffs two vendors, namely, the two trustees Nilkanth and Baliram, were impleaded as defendants 1 and 2. The following relicts were claimed in the plaint: (a) Defendant No. 6 shall execute a sale-deed of field No. 17/1 for a consideration of Rs. 1800/-and put the plaintiff in possession. (b) That a decree for Rs. 1793/- made up of Rs. 624/- decreed as inesne profits in the earlier suit, Rs. 328/- for repairs, Rs. 227/- lor municipal taxes, Rs. 200/- for the balance of consideration and interest on Rs. 624/- on account of mesne profits decreed in the first suit, and other amounts. (c) In the alternative the plaintiff claimed a decree against defendants 1 and 2 for Rs. 1800/-plus Rs. 1793/- and other small items.

(3.) THIS suit by Ramkrishna, the purchaser of the house belonging to the Deosthan, was dismissed by the trial court as against the Deosthan, but the trial Court decreed the claim as against defendants i and 2, Nilkanlh and Baliram, lor Rs. 2000/- and costs. Defendant No. 6 and the two vendors, defendants 1 and 2, preferred separate appeals. The first appellate court reversed the decree against defendants 1 and 2 for Rs. 2000/- and dismissed the suit as against them but decreed the claim as against the Deosthan (defendant No. 6) ior execution of a sale deed in respect of survey No. 17/1, and also decreed mesne profits.