1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 821 OF 2009 Amruta s/o Ganpati Bhagat ( deceased through LRs) & others Appellants Versus Ambu s/o Bayaji Jagdale ( deceased through LRs) & others Respondents Shri P.R. Katneshwarkar, advocate for the appellant. Shri S.Y. Mahajan, Advocate for respondent nos. 3A to 3D. Respondent nos. 1A, 1B, 1D, 1E, 2 & 5 served. Respondent nos. 1C, 4, 6 and 7 dismissed as per court order dt. 8-2-2008. ===== CORAM: R.M.BORDE, J. DATE : 24th September, 2009. PER COURT : 1 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff Damu instituted Regular Civil Suit no. 9/1977 claiming redemption of mortgage and possession of the agricultural property from the defendants. According to plaintiff, one Namdabai w/o Laxman Yadav was the owner of the suit lands bearing survey no. 138/C and 138/A admeasuring 8 acres and 33 gunthas and 6 acres 17 gunthas rrespectively of village 2 Pakhrud Tq. Kallam. She sold the suit land to Ganpati Bhagat and Bayaji Jagdale for consideration of Rs.750/- surti coin. Bayaji Jagdale executed registered mortgage deed of northern half share in favour of Bayaji Bhagat for Rs.250/-. The mortgage deed was attested by Ganpati also. Bayaji Jagdale delivered possession of the land in favour of Bayaji Bhagat. The mortgage was usufructuary. The mortgagee was to appropriate usufructs of the land and continue his possession till the date of redemption which was prescribed after 1871 Sake. The mortgage was not redeemed. It is contended that on 12-1-1976 defendant no. 10 sold the suit lands for legal necessity in favour of plaintiff. Thus, plaintiff became owner of the suit property. Plaintiff requested defendant nos. 1 to 9 to redeem the mortgage and deliver the possession. But defendants refused to do so hence, plaintiff was required to present suit for redemption of mortgage and possession. 3 According to defendants, although the suit property was divided in two parts, there was no partition amongst Ganpati and Bayaji. They denied execution of mortgage deed by Bayaji and handing over possession thereof. They further denied that plaintiff became owner of the property by virtue of sale-deed dt. 12-2-1976. Defendants' contention is that Narmadabai sold the lands to Ganpati and Bayaji and Bayaji was not in a position to pay price of the land. As such, after death of Bayaji his sons namely Ambu defendant no. 3 1 and Sayaji agreed to sell the land to defendant nos. 1 to 5 for consideration of Rs.750/- in Shake 1876. They further contended that possession of the lands was also handed over to the defendants. Ganpati remained in possession of the property as owner in pursuance to agreement to sell. Defendants contend that plaintiff's suit is not maintainable and as such claim dismissal of the suit. 4 On the basis of the pleadings, trial court framed issues and after receiving evidence led by the parties, trial court came to the conclusion that plaintiff has established that Ganpati became owner and possessor of the suit land to the extent of southern half portion and Bayaji Jagdale became owner and possessor of northern half portion of the suit land. So far as execution of the mortgage deed by Bayaji Tukaram in favour of Bayaji Jagdale is concerned, trial court recorded finding that the same is executed in the year 1349 fasli. Trial court has also recorded finding that the plaintiff has established that he became owner on the basis of the sale-deed executed in his favour by defendant no. 10 and as such entitled to redeem the mortgage. Contention of the defendants that Bayaji Jagdale agreed to sell his lands to Ganpat and put him in possession of his share has not been proved by the defendants. 4 5 Trial court thus granted decree in favour of the plaintiff by judgment and decree dt. 25-4-1989. Judgment and decree passed by the trial court was subjected to challenge at the hands of defendants in Regular Civil Appeal no. 89/1990 which came to be heard and disposed of by the 2nd Additional District Judge, Osmanabad who was pleased to dismiss the same. 6 It transpires on perusal of the judgments that defendant nos. 1 to 5 had instituted Regular Civil Suit no.9/1979 in respect of the suit land for specific performance of contract against defendant no. 11 and Sayaji. Relief of specific performance claimed by the defendants is turned down. As such they preferred appeal which was barred by time. Application for condonation of delay tendered by defendants came to be rejected. Thus, decree passed in Regular Civil Suit no. 7/1979 has been confirmed. The net result of dismissal of suit is that the concerned defendants cannot establish their entitlement to the suit property on the basis of agreement to sell. In this view of the matter, defendants are not entitled to claim their title to the property. Apart from this, it has been also taken note of that Tukaram was signatory to the mortgage transaction entered into earlier which was subject matter of challenge in Regular Civil Suit no. 9/1979. In this view of the matter, the courts below have taken a view that the plaintiff who stepped into the shoes of mortgagee is entitled to claim redemption of the property. The view 5 adopted by the courts below cannot be said to be unreasonable or improper. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 7 In view of dismissal of the appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa821.03.odt