IMPORTANT POINTS
Concurrent finding of trial court and first appellate court on proper appreciation of facts and law is binding not only on High court but also Supreme Court.
Sale of property by Karta for family needs binds all family members.
Collusive suit is liable to be dismissed.

JUDGMENT :

ABHAY MANOHAR SAPRE, J.

1. Leave granted.

2. This appeal is filed against the final judgment and order dated 19.12.2008 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Second Appeal No.177 of 1988 whereby the High Court dismissed the second appeal filed by the appellants herein and upheld the judgment of the Trial Court and first Appellate Court.

3. A few facts need mention herein-below for the disposal of this appeal.

4. This appeal is filed by the legal representatives of two original plaintiffs, who died after filing of the civil suit.

5. The original two plaintiffs were the real sisters of defendant No.3 (respondent No.3 herein Shankarlal) and their father was late Motilal.

6. There is a building named “Moti Building” in the city of Jalna, which consists of four houses, each bearing separate number, viz.,3484/3534, 3485/3535, 3486/3536 and 3487/3537 (hereinafter referred to as “the suit property”).

7. Defendant No.3/respondent No.3 sold the suit property to one Bansilal Shivlal by a registered sale deed dated 07.10.1965. On the death of Bansilal, defendant Nos.1 and 2/respondent Nos.1 and 2 herein inherited the suit property as heirs of Bansilal and thus became the owners of the suit property.

8. Since some dispute arose between defendant Nos.1 and 2 with defendant No.3 in relation to the suit property, defendant Nos.1 and 2/respondent Nos.1 and 2 herein filed a civil suit in the year 1971, being CS No.48/1971 against defendant No.3/respondent No.3 Shankarlal and others (tenants in the suit property). The suit was for a declaration of title over the suit property and for permanent injunction in relation to the suit property. The suit was contested by defendant No.3.

9. By judgment/decree dated 31.01.1975, the civil suit (No.48/1971) was decreed in favour of defendant Nos.1 and 2/respondent Nos.1 and 2. The Trial Court inter alia held that defendant Nos.1 and 2 are the owners of the suit property. This decree attained finality.

10. Thereafter, a civil suit, out of which this appeal arises, was filed against the defendants (respondents herein). The suit was for a declaration that the decree dated 31.01.1975 passed in Civil Suit No.48/1971 is not binding on the two plaintiffs and that the sale deed dated 07.10.1965 executed by defendant No.3/respondent No.3 in favour of defendant Nos.1 and 2/respondent Nos. 1 and 2 in relation to the suit property is also not binding on the two plaintiffs.

11. The suit was founded inter alia on the allegations that the suit property was an ancestral property of the family in which the two plaintiffs - who are the sisters of defendant No.3/respondent No.3 have an equal share along with defendant No.3. The plaintiffs alleged that since the suit property was sold by defendant No.3/respondent No.3 without their knowledge, authority and consent, the sale deed dated 07.10.1965 is null and void to the extent of plaintiffs’ share. The plaintiffs also alleged that since both the plaintiffs were not parties to Civil Suit No.48/1971, the decree dated 31.01.1975 passed in the said suit is neither binding on them nor such decree affects their right, title and interest in the suit property.

12. During pendency of the civil suit, wife, sons and daughters of defendant No.3/respondent No.3 also joined the civil suit, either as plaintiffs or as defendants, some since inception and others at a later stage. Defendant No.3, his wife, sons and daughters supported the plaintiffs’ case.

13. The suit was contested only by defendant Nos.1 and 2, who were the purchasers of the suit property from defendant No.3.

14. According to defendant Nos.1 and 2, first, the suit was barred by limitation because it was filed after three years from the date of decree dated 31.01.1975; Second, it was bad in law because the plaintiffs failed to seek partition in relation to the entire properties owned by the family; Third, it was a collusive suit filed at the instance of defendant No.3/respondent No.3 to avoid exec