KANJI S O GANESH Vs. PARMANAND

JUDGEMENT

(1.) This Second Appeal by transferees and contesting defendants who were unsuccessful in the two Courts below was by order dated 24-7-1981 admitted for final hearing on the substantial questions of law set out below :

(2.) Plaintiff No. 1 Paramanand and defendant No. 2 Mahadeo are sons of one Shankar Lal, plaintiffs Nos. 2, 3 and 4, Dhankunwarbai, Punibai and Chunnibai alias Hirubai are sisters of Paramanand and Mahadeo and defendant No. 1 Gaumatibai (since deceased) is mother of the plaintiffs and defendant No. 2 Mahadeo and wd/o Shankar Lal who died sometime in Sam. 2002 corresponding to year 1945 of Gregorian Calendar. Shankar Lal at the time of his death owned and possessed agricultural land in Bhumiswami rights at village Krothali as detailed below :

(3.) After Shankar Lal's death the name of the plaintiff No. 1 Paramanand and defendant Nos. 1 and 2 w/d Gomtibai and son Mahadeo were mutuated in the revenue papers but the names of plaintiff Nos. 2 and 3 were not mutuated along with the names of other heirs of Shankar Lal. Plaintiffs claimed that they had 2/3rd share in agricultural lands left behind by Shankar Lal after his death. They called upon defendant Nos. 1 and 2 to effect partition and give plaintiffs their 2/3rd share in the land but the two defendants did not comply with this demand. The plaintiffs further pleaded that defendant Nos. 1 and 2 through fraud and cheating had executed sale deeds of the agricultural land in favour of defendant Nos. 3 and 4 Kanji and his son Babulal and these two defendants were illegally unauthorisedly in possession of the agricultural lands. The plaintiffs further pleaded that defendant Nos. 3 and 4 very well knew that plaintiffs besides defendant Nos. 1 and 2 are heirs of Shankar Lal but in spite of this, they had got the sale deeds executed in respect of the agricultural lands left behind by Shankar Lal by defendant No. 1 and 2 Mst. Gomtibai and Mahadeo dishonestly and through fraud in their favour. The plaintiffs also claimed mesne profits @ 3000/- per year in respect of their 2/3rd share in the agricultural lands from the date of institution of the suit. On the above pleadings the plaintiffs claimed declaration of title, partition and possession of their share in the lands left behind by Shankar Lal under possession of transferees defendant Nos. 3 and 4.