DHANSE DEOSA KALAL Vs. VASUDEO SHIORAM

JUDGEMENT

(1.) BY his order of reference dated 17-9-1968. Abhyankar, J. referred two questions stated in his order; but having heard counsel, we think that the questions ought to be reframed in order to bring out more precisely the controversy between the parties. Accordingly, we have re-framed the questions which are as follows:

(2.) SURVEY No. 11/1 of mouza Dhangarkheda, tahsil and district Amravati, belonged to one Namdeo son of Karayan Kunbi. Namdeo's mother was one Gayabai. She was entitled to maintenance and therefore on 17-1-1942 Namdeo executed a Vyavasthapatra in her favour. By this Vyavasthapatra the field Survey No. 11/1 was put in her possession along with some other rights in Mango trees with which we are not concerned. She was permitted to enjoy the usufruct of the field in lieu of maintenance till her death. The Vyavasthapatra has been translated and the translation is not in dispute before us today. Inter alia it provides:

(3.) WE may now state the circumstances under which the petitioner Dhansa Deosa Kalal came into the picture. Namdeo, who was the owner of the field which he had given to Gayabai for her maintenance as per the Vyavasthapatra of 17-1-1942, sold the field to three persons Daolatsingh, Atmaram and Ganpat on 16-2-1943. This sale was obviously subject to the rights in favour of Gayabai, under the Vyavasthapatra. The petitioner before us, Dhansa, was the co-occupant of a neighbouring field (a pothissedar) and therefore he was entitled to pre-empt the sale in favour of the three vendees from Namdeo. He gave notice of pre-emption and filed a suit Civil Suit No. 54-A of 1944. In that suit, he had made Gayabai a party defendant. The suit came to be decreed in favour of Dhansa on 27-3-44, and the decree directed the plaintiff Dhansa to deposit the pre-emption price and that title to the field would accrue to him on such deposit. It further provided "and the plaintiff (Dhansa) shall be entitled to possession after the death of defendant No. 4 (Gayabai) who is to remain in its possession till her death. " the amount was deposited by the pre-emptor plaintiff Dhansa and therefore title to the field ultimately accrued to him. This position of the parties continued from 1944 till the date of the death of Gayabai when the dispute between the parties began.