2025:BHC-AUG:14318 {1}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 716 OF 1999

1. Balaji S/o. Shivaji Phawade, Age 22 years, Occ. Agriculture, 2. Ajit S/o. Shivaji Phawade, Age 20 years, Occ. Agriculture, 3. Sujit S/o. Shivaji Phawade, Age 18 years, Occ. Agriculture, 4. Sow Rukhminibai w/o. Shivaji Phawade, Age 38 years, Occ. Household, All R/o. Nargarsoga, Taluka Ausa, District Latur.

.. APPELLANTS VERSUS

1. Shivaji S/o. Bajirao Phawade, Age 48 years, Occ. Agriculture, R/o. Nagarsoga, Taluka Ausa, District Latur.

2. Namdeo Rajiba Phawade, since deceased through LRs

2A Madhuri wd/o. Namdeo Phawade, Age 71 years, Occ. Household, 2B Sachin s/o. Namdeo Phawade, Age 46 yeears, Occ. Agri. And Service.

2C Navin s/o. Namdeo Phawade, Age 44 years, Occ. Agri and Service.

2D Nita w/o. Jayandra Pawar, Age 49 years, Occ. Housewife, {2}

All R/o. Nagarsona, Tq. Ausa, Dist. Latur.

.. Respondents.

Mr. Yuvraj Kakade, Advocate h/f. Mr. V.V. Patil, Advocate for appellant, Mr. B.N. Patil, Advocate for respondent No.2.

CORAM : S.G. CHAPALGAONKAR, J.

RESERVED ON : 11TH MARCH, 2025.

PRONOUNCED ON : 8TH MAY, 2025.

JUDGMENT:-

1. The appellant (original plaintiffs) impugn the judgment and decree dated 30.09.1998 passed by the District Judge, Latur, in CRA No. 65 of 1994, thereby reversing the judgment and decree dated 24.11.1993 passed by Civil Judge (J.D.), Ausa, in RCS No. 274 of 1987. [ For sake of convenience, parties are referred as per their original status in suit.)

2. The plaintiffs instituted a suit seeking a decree of cancellation of sale deed and declaration of ownership. It is their contention that defendant No.1 is father of plaintiff Nos. 1 to 3 and husband of plaintiff No.4. He is addicted to vices. The agricultural land bearing Survey No, 178/3 to the extent of 5 acres was received by defendant No.1 in partion between himself and his mother and sisters. On 4.5.1979, he executed sale deed in favour of defendant No.2 for consideration of Rs. 4,000/-. It was a transaction without legal necessity. Similarly, defendant No.2 had agreed to reconvey the suit land to defendant on payment of Rs. 4,000/-. As such, there was oral agreement of re-conveyance. Therefore, the transaction in question was in the {3}

nature of Vishwas Bainama. Plaintiffs, therefore, prayed for cancellation of sale deed and declaration that they are owners and possessors of suit property.

3. The plaintiffs claim was refuted by defendant No.2 i.e. purchaser, contending that suit in present form is not maintainable. Defendant No.1 sold out the property and utilized the consideration also for purchase of another land. The transaction was bonafide and for benefit of family. Plaintiffs are proxy. The defendant No.1, has in fact filed the suit in the name of plaintiffs. The suit is collusive.

4. The trial court framed issues, based on pleadings of the parties, recorded evidence and finally accepted plaintiffs claim and cancelled the sale deed dated 4.5.1999 and plaintiffs were directed to deposit an amount of Rs. 4,000/- in the court within a period of one month.

5. Aggrieved defendant No.2 filed Regular Civil Appeal No. 65 of 1994 before the District Judge at Latur, who, after evaluation of evidence and considering the reasoning adopted by trial court, reversed the decree and dismissed the suit.

6. Present second appeal is instituted by aggrieved plaintiffs. It was placed for admission before this Court on 9.10.2002. Accordingly, it is admitted on following substantial questions of law :-

“1. Whether the lower appellate court, without framing point for determination on the point of legal necessity can decide question of legal necessity and interfered in the decree {4}

passed by the trial court;

2. When the purchaser has not pleaded and proved that there was in fact a legal necessity for defendant No.1 to sell the property, whether the appellate court can record finding in absence of pleadings.

7. The learned advocates appearing for respective parties, advanced their s