NAGORAO NARAYAN DIEWANE Vs. NARAYAN AWADUTRAO DIGHE

JUDGEMENT

(1.) THIS second appeal is preferred by the original defendant in Regular Civil Suit No. 104/74 who lost the battle in trial Court as well as first Appellate Court. The Trial Court by his judgment dated 12th day of November 1979 passed by the 2nd Joint Civil Judge, Junior Division, Yavatmal Shri K. R. Malviya, decreed plaintiffs suit by making a declaration that the suit plot was purchased by defendant Benami for plaintiff and as such plaintiff was owner of the same. The appellant defendant preferred Regular Civil Appeal No. 50/1980 challenging the judgment and decree passed on 12-11-1979. The learned Assistant Judge, Yavatmal Shri M. G. Palhade by his judgment dated 28-1-1983 dismissed the appeal confirming the decree passed by trial Court. Thus the appellant defendant has preferred this appeal challenging the judgment and decree passed by the first Appellate Court in R. C. A. No. 50/1980. The appellant defendant is uncle of original plaintiff now the respondent in this appeal. The plaintiff lost his parents in his childhood and admittedly he was brought up and educated by the defendant. Plaintiff joined the military service in the year 1941. The defendant was serving with District Local Board Yavatmal. The subject matter of the dispute is western half portion of plot 1/1 out of sheet No. 51/2 and in the said plot there is block No. 17 measuring 117 or 119 ft. east-west and 60 ft. north south. The western half portion of this block is the suit plot.

(2.) PLAINTIFF since after joining military service went on sending Rs. 20/- per month to the defendant out of his pay. In the year 1942 plaintiff was promoted and his pay was increased to Rs. 140/- per month and subsequently since October 1942 he started sending Rs. 70/- per month to the defendant with a view to have some saving. Defendant decided to purchase some open plot for plaintiff out of the amount that was lying with him and defendant and one Waman Abaji jointly purchased the entire plot by registered sale deed dated 26-6-1944 for a consideration of Rs. 1000/ -. Defendant disclosed to plaintiff when returned back to India and came to Yavatmal in the month of September that he purchased the open plot for sum of Rs. 500/- alongwith Waman Ajab who also contributed Rs. 500/ -. Defendant and said Waman privately divided the said plot leading to eastern half portion to the share of Waman and western half portion to defendant. The name of defendant instead of plaintiff was inserted in the sale deed because that time plaintiff was serving in foreign country and there was no guarantee as to when he was returning back to India. Plaintiff was under the obligation of defendant and for that reason he did not express anything about insertion of the name of the defendant in the sale deed. Defendant, however told the plaintiff that the western half portion of the block i. e. the suit plot would be reconvayed in his name whenever necessary.

(3.) IN due course of time the relations between the wife of plaintiff and wife of defendant became strain while she was living with defendant, with the result that plaintiff informed defendant to reconvey the suit plot in his name and the defendant should build the house on that plot for him out of the amount belonging to him and which was in deposit with the defendant. The defendant by letter dated 20-5-48 (Exhibit 49) informed the plaintiff that he would not misappropriate his amount and would not grab his immovable property. Because of this letter whatever misunderstanding the plaintiff had about the defendant had vanished and so the plaintiff did not insist on getting the plot reconveyed in his name. It is plaintiffs say that even in subsequent letters Exhibit 50, 54, 56, 57, and 58 defendant admitted plaintiffs title to the suit plot. Eastern half portion of block No. 17 out of this plot which was purchased by Waman, was subsequently purchased by plaintiff by sale deed dated 30-4-54. Consequently from 30-4-1954 entire block No. 17 of plot 1/1 came into possession of plaintiff as owner thereof and since then it is in possession of the plaintiff in his own rights.