RAVINDRA KHANWALKAR Vs. GANPATI KHANWALKAR

JUDGEMENT

(1.) FEELING aggrieved by the judgment and decree passed by First Additional district Judge, Sagar, in Civil Suit No. 10-A/2000, decided on 25-10-2002, this appeal under Section 96 of the Civil Procedure Code, has been preferred by the unsuccessful plaintiff.

(2.) FACTS, giving rise to the filing of the said appeal, in a nutshell are mentioned hereinbelow :-Plaintiff Ravindra is closely related to defendant No. 1 Ganpati, defendant No. 2 Vinod and defendant No. 3 Santosh, as they all belong to the same family. The genealogical tree, even though not required to be given, but for better appreciation, is mentioned hereinbelow :-Malhar Rao was the original owner and common ancestor of the property. He had 4 sons; Vishnu was the eldest, next was Narayan, then Sadashiv and then the youngest being Dattatray. Narayan, the second son, had died issuelcss and it appears that he was not even married. Vishnu had one son, i. e. , defendant No. 1 Ganpati and Ganpati had one son by the name of Vinod, i. e. , defendant No. 2. Sadashiv had died on 27-12-90, leaving behind his son ravindra, i. e. , the present plaintiff. The youngest of the 4 sons of Malhar Rao, dattatray had died on 7-4-2000 leaving behind defendant No. 3 Santosh. Malhar Rao had property situated in Laxmipura Ward, Sagar, which was popularly known as Khanwalkar Bade. On 5-2-92 an oral partition had taken place between Ravindra, Ganpati and Dattatray. As per this partition southern portion of the Khanwalkar Bade fell to the exclusive share of plaintiff ravindra, central portion thereof fell to the exclusive share of Ganpati and vishnu (defendant Nos. 1 and 2) and remaining northern portion fell to the share of Santosh (defendant No. 3 ). The said oral partition was then reduced to writing on 20-2-92 and has been marked as Exhibit P-1. An agreement was further entered into between the aforesaid parties on the same date marked as Exhibit P-2. It appears that toilet, electric and water connections were situated in three different portions, thus it was agreed upon that within a period of one year from the said date all the three co-sharers would make their respective arrangements. It was further agreed that in case any of the co-sharer decides to alienate or dispose of his share, then it shall he his bounded duty to first offer it to the other co-sharer and only on his refusal to purchase the property, he would be at liberty to sell it to someone else. It is borne out from the record that defendant Nos. 1 to 3 sold their respective shares of the property to defendant Nos. 4 and 5 vide two sale deeds executed in their favour on 16-3-2000 marked as Exhibits D-1 and D-2. This gave rise to the plaintiff to bring an action against the defendants claiming the following reliefs, i. e. , specific performance of contract, possession of the property sold in favour of defendant Nos. 4 and 5 and for permanent injunction.

(3.) PLAINTIFF based his claim primarily on the condition envisaged in exhibit P-2 whereby it was agreed upon, as and when any of the co-sharer decides to dispose of or alienates his share,then the same would be first offered to the other co-sharer and only on his refusal to do so, it would be permissible to him to sell it to someone else. Plaintiff, accordingly, claimed right of pre-emption.