1 sa555/89 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 555 OF 1989 Gopinath s/o Sonba Tailor Appellant V E R S U S 1 Deokubai w/o Mahadu Angulwad Respondents 2 Laxman s/o Pandurang (Appeal abated) Mr. G.M. Jadhav, Advocate for the appellant Mr. M.V. Deshpande, Advocate for respondent No.1 Respondent No. 2 - Abated CORAM : A.V. NIRGUDE, J. Reserved On : 10th June, 2011 Pronounced On : 15th June, 2011 JUDGMENT 1. Respondent No.1 was one of the original plaintiffs who sued the appellant's predecessor and others for possession of lands Survey No. 44/1/A, 44/1/B and 45 of village Bember, Taluka Bhokar, District Nanded. Respondent No. 1 sued for following cause of action. 2. She said, her husband Mahadu was owner of above mentioned lands. They were his ancestral properties. Respondent No. 1 asserted that her husband Mahadu deserted her for another woman and started residing with his mistress at another village. He totally neglected her and her daughters. So, on 11th February, 1966, she and her one daughter filed Special Civil Suit No. 50 of 1966 against him for maintenance. The suit ended in compromise and Mahadu inter alia transferred the suit lands to respondent No.1 in lieu of her maintenance. The Civil Court passed a decree to that effect on 12th 2 sa555/89 December, 1966. Despite of this decree, soon thereafter, Mahadu transferred the suit lands to the appellant and others by executing registered sale deeds and by delivering possession of same to them. Respondent No. 1 therefore filed the present suit for recovery of possession of the suit lands from the appellant and others. To this suit, Mahadu was also a party and who even opposed the suit on merits. He asserted that he had sold the suit lands to the appellant and others even prior to the compromise and had put them in possession. He asserted that the registered sale deeds were executed as formality subsequent to 1966. The appellant’s predecessor Sonba, who was defendant No. 3, also opposed the suit on similar line saying that he purchased part of the suit property for valuable consideration prior to 1966, but the formal sale-deed was executed subsequent to 1966. The purchasers also suggested that the lands were sold for legal necessity etc. The purchasers also asserted that the decree passed by the Court was not registered, and therefore, respondent No. 1 would not get title to the suit property etc. 3. At the trial stage, the learned Judge of the trial Court partly decreed the suit by holding that respondent No. 1 – plaintiff was entitled to recover possession of Survey No. 44/1/A, ad-measuring 7 Acre 9 Gunthas only. However, the learned Judge of the first appeal Court held that respondent No. 1 – plaintiff could prove that she became owner of the suit property in view of the compromise decree in Special Civil Suit No. 50 of 1966. He further held that respondent No. 1 was not aware of the earlier transactions between her husband Mahadu and the purchasers who alleged that they had purchased the suit lands prior to 1966 etc. The learned Judge of the first appeal Court decreed the entire suit. 4. As said above, respondent No. 1 had filed the suit against the 3 sa555/89 predecessor of the present appellant and one Laxman Pandurang who was original respondent No. 4 and who had purchased part of the suit land. But, despite of the decree passed by the learned Judge of the first appeal Court, he preferred not to file any appeal against the Judgment. In the meantime, during pendency of the first appeal, respondent No.1’s husband Mahadu who was original defendant No. 1 also died and the suit as against him also abated. It was only the son of original defendant No. 3 -the appellant- who came to this Court and has filed the second appeal. 5. The appeal was admitted on 8th October, 1990, but no substantial question of Law was formulated then. The learned Advocate appearing for the appellant asserted that the decree is not binding on his client or original defendant No. 3, because the land which defendant No. 3 had purchased from defendant No. 1, was not subject matter of the compromise decree. This is the only submission of the appellant. So let me examine this aspect of the case. 6. As said above, three pieces of lands are subject matter of the appeal. They are described in the Judgment of the trial Court as under : i. Survey No. 44/1/A (7 Acre 9 Gunthas) ii. Survey No. 44/1/B (20 Acre) iii. Survey No. 45 (12 Acre 18 Gunthas) From this description, it is seen that Survey No. 44/1 was divided into two parts i. e. Part-A and Part-B. It also suggests that Survey No. 44/1 originally was one piece of land ad-measuring 27 Acre 9 Gunthas. According to the sale-deed executed by Mahadu in favour of original defendant No. 1, the predecessor of the appellant, land Survey No. 44/1/B, ad-measuring 20 Acre was sold to him after 1966. The question is, whether this piece of land was subject matter of the compromise? On perusal of the certified copy of the 4 sa555/89 decree in Special Civil Suit No. 50 of 1966, following terms and conditions of compromise were seen : 1. That the plaintiff No. 1 being the wife and the plaintiff No. 2 being the daughter are entitled to maintenance from the defendant. 2. That the defendant is responsible for the expenses of marriage of Lila, the plaintiff No.2. The lands s.no.44/A and 45 situated at Bember, Taluka Bhokar have been given to the plaintiffs in lieu of maintenance and defendant has also agreed to bear the expenses of the marriage of the plaintiff no.2. It is also settle that the plaintiff no.1 shall be entitled to occupy the residential house till her life time. Defendant shall not be entitled to alienate the house as well as lands. It is also agreed that if defendant fails to pay the expenses of the marriage of the plaintiff no.2, plaintiff no.1 shall be entitled to sell the lands for her marriage. The defendant shall not be responsible for future maintenance of the plaintiffs. The details of the house are being given below:­ That the parties have entered into compromise with their free will and pleasure. They shall bear their own costs. From these terms and conditions, it is found that Mahadu had given land Survey No. 44/A and 45 to his wife. Land Survey No. 44/A has not been described as 44/1 of 44/1/A. The question is, whether this land represented original Survey No. 44/1 ? The answer is in affirmative. It has come in evidence that originally Survey No. 44/1 measured 27 Acre 14 Guntha, and, father of the appellant in his deposition stated that he had purchased 20 Acre area of this land which was on the southern side. This 5 sa555/89 shows that when the parties referred to land Survey No. 44/1 they referred to the undivided land admeasuring 27 Acre 14 Gunthas. This very land, it appears, was described as Survey No. 44/A in the terms of the compromise. Had this not been so, the father of the appellant – original defendant No. 1 would have certainly taken a specific plea in the written statement that the land which she purchased was not subject matter of the compromise. Such a plea was not at all taken. This means that the submissions at the bar at this stage are made for the first time. This was the only point raised for pressing the appeal. The appeal should therefore fail. The Second Appeal stands dismissed. ( A.V. NIRGUDE, J. ) SRM/sa/555/89/15/6/11/ok