JUDGMENT

Kapadia, J.—The short question which arises for consideration in this civil appeal is : whether on the facts and circumstances of the case the lower appellate court was right in holding that the issue of legal necessity even if decided in favour of defendant nos.1 to 5 (appellants herein) was not a “fact in issue” and was therefore not a relevant fact in a suit for possession.

2. The facts giving rise to this civil appeal are as follows.

Land admeasuring 12 acres 16 gunthas in Survey No.218 situated within Chikhli Municipal Limits, District Buldhana, was owned by Nimbaji and his family members. It was an ancestral property. Nimbaji had five sons. One of his sons was Panditrao (defendant no.6). Nimbaji and his four sons excluding Panditrao agreed to sell 9 acres 16 gunthas out of the above ancestral lands to the plaintiffs (respondent nos.1 to 4 herein). The agreement was reduced to writing. It was registered on 18.3.75. It was followed by a conveyance dated 31.3.75. Panditrao was neither a party to the writing agreement nor to the sale deed. He did not consent. He protested against the transaction. Panditrao had entered into an agreement with defendant nos.1 to 5 on 5