SECOND APPEAL 191 of 2009 on 26 May 1975

1. This is defendant No.l's Second Appeal. The present Respondent Nos.1 and 2 had filed a suit for declaration of ownership and injunction which came to be dismissed. Only plaintiff No.1 preferred an appeal. The lower appellate Court 2 S.A.No.191/09

allowed the appeal and decreed the suit. The defendant No.1 being aggrieved by the same have filed the present Second Appeal.

2. Mr.Warad, learned counsel for the appellant with all his persuasive skill contends that the lower appellate Court has not considered the provisions of Section 34 of the Specific Relief Act, in its correct perspective. The suit of the plaintiff is not maintainable in view of the fact that no relief for cancellation of sale deed was asked. For the said purpose, Mr.Warad, learned counsel relies on the judgment of learned Single Judge of Karnataka High Court in a case of "Chikkathamaiah and others Vs. Chikkahutchiah and others" AIR 1977 Karnataka 99. The learned counsel further contends that a vague plea of fraud is not sufficient. The proof regarding the alleged fraud must be of such a degree that prudent man can believe it. For the said purpose, the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Kisan S/o Ramji Khandare Vs. Kausalyabai W/o Gangaram Korde and others"

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reported in 2007(4) Mh.L.J.43.

3. Mr.Warad, learned counsel contends that the partition was effected on 22.11.1976, whereas the father of the plaintiffs had sold the property to the present appellant on 26.5.1975 and as such suit itself was not maintainable. The lerned counsel further contends that the appellant could not have been driven to file a suit for partition after such a long period. The appellant is in possession of 1 acre of land which is sold to him by the father of the plaintiffs, the appellant also further sold said land on 8.6.2008 and to which the original plaintiff No.1 is also an attesting witness. In such circumstances, there is no dispute between the parties and the plainitff should not have been asked to file a separate suit for partition.

4. It has been further contended by the learned counsel that the father had right to sell the property which right, has been exercised. The suit is a collusive suit between the plaintiffs and their father.

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5. Per contra, Mr.Joshi, learned counsel for the Respondents submits that the relief of declaration was sought and the sale deed executed by the father would not be binding to the extent of their share. The suit land is an ancestral property. It is of 3 acres and 17 gunthas and 1 acre was sold by their father. Admittedly, the property is an ancestral property and unless the purchaser seek relief of partition he can not claim exclusive possession over any separate 1 acre of the land.

6. With the assistance of the learned counsel, I have gone through the judgments delivered by both the Courts. The contention of Mr.Warad, learned counsel that unless and until relief of cancellation is sought, the suit was not maintainable. The same is not sustainable in view of the fact that the suit property was joint family property and the plaintiffs were claiming that sale deed would not be binding to the extent of their share. The defendant No.1 could not have claimed exclusive possession over any identified 1 acre of land as there was no 5 S.A.No.191/09

partition on the said date prior to the said sale. In that light of the matter, the suit of the plaintiff for declaration and injunction was perfectly maintainable. The sale deed is not set aside as has been obtained by fraud but the declaration is given to the extent that the same is not binding to the extent of the share of the plaintiff. In view of the same, the judgment in a case of"Kisan S/o Ramji Khandare Vs. Kausalyabai W/o Gangaram Korde and others" referred supra is of no avail to the present appellants.

7. The rights of the appellant are protected. The sale deed to the extent of the share of Tukaram is held to be valid and binding. As such the present appellant only has to seek relief of partition and get the share defined, determined and get his 1 acre of land segregated, as has been observed by District Court.

8. In light of the above, the Second Appeal being sans substantial question of law, is 6 S.A.No.191/09

dismissed. However, there shall be no order as to costs.

9. Mr.Warad, learned counsel states that till the present appellant takes steps to file the suit, the order of statusquo passed by this Court be further extended. Mr.Warad, seeks for extension of the said statusquo for a period of six (6) months. Mr.Joshi, learned counsel resist the said prayer.

10. Taking into account fact that appellant has right to institute suit for partition and separate possession and also taking into account the fact that the order of statusquo was operating since the year 2009. The said order of statusquo is extended by further period of four (4) weeks. On lapse of said period of four (4) weeks, the order of statusquo shall automatically stand vacated.

11. Copy duly authenticated be given.

(S.V.GANGAPURWALA,J.)

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asp/office/sa19109