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IN THE HIGH COURT OF JUDICATURE OF BOMBAY,

BENCH AT AURANGABAD

SECOND APPEAL NO.139 OF 1993

Narayan Mahipat Patil

Age : 50 years, Occ : Agri.,

R/o Lohtar, Tq. Pachora,

Dist. Jalgaon.

Appellant

V/s

1.

Mankorbai W/o Waman Patil

Aged : 50 years, Occ : Agri.,

R/o Atale, Post. Pimple,

Tq. Amalner, Dist. Jalgaon.

2.

Byajabai W/o Yashwant Patil

Age : 45 years, Occ : Agri.,

R/o Zadi, Tq. Amalner,

Dist.Jalgaon.

Respondents

WITH

SECOND APPEAL NO.135 OF 1993

Narayan Mahipat Patil

Age : 50 years, Occ : Agri.,

R/o Lohtar, Tq. Pachora,

Dist. Jalgaon.

Appellant

V/s

1.

Mankorbai W/o Waman Patil

Aged : 50 years, Occ : Agri.,

R/o Atale, Post. Pimple,

Tq. Amalner, Dist. Jalgaon.

2.

Byajabai W/o Yashwant Patil

Age : 45 years, Occ : Agri.,

R/o Zadi, Tq. Amalner,

Dist.Jalgaon.

Respondents

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Mr. A.U. Patil holding for Mr.R.N. Dhorde, Advocate

for appellants in both the appeals.

Mr. Sanket S. Kulkarni holding for Mr.V.T. Choudhari,

Advocate for Respondent Nos.1 and 2.

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(CORAM : V.R. KINGAONKAR,J.)

DATE OF JUDGMENT RESERVED : 16^th NOVEMBER, 2009

DATE OF JUDGMENT PRONOUNCED :02^nd DECEMBER, 2009.

JUDGMENT:

1.

Both these appeals are preferred by original

defendant. He challenges common judgment rendered by

learned IV Additional District Judge, Jalgaon in Civil

appeal no.34/1982 and civil appeal no.392/1983. By the

impugned judgment, his appeal (C.A. No.392/1983) was

dismissed whereas appeal (C.A. No.34/1982) preferred

by original plaintiffs against part of the decree

rendered by the Trial Court was allowed and thus, the

suit was fully decreed.

2.

The respondents are original plaintiffs. They

had filed suit (R.C.S. No.75/1975) for recovery of

possession along with mense profits. The suit

properties comprise of an agricultural land bearing

survey no.114/1B-1, admeasuring 1 Acre 20 Gunthas (0

Hectors 61 Ares) and two house properties which bear

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village panchayat Nos.214/1 and 214/2.These suit

properties are situated at village Lohatar.

3.

Briefly stated, the plaintiffs’ case before

the Trial Court was that the suit properties were

owned by deceased Waman, who was husband of the

plaintiff no.1 and father of the plaintiff no.2. He

had purchased the suit properties in the year 1940

from two brothers by name Garbad and Janaji ss/o

Sampat. He died on 17.11.1947. Thereafter, they were

in enjoyment of the suit properties as his legal

representatives. The defendant (appellant) forcibly

dispossessed them from the suit properties somewhere

in May, 1970. Consequently, they sought recovery of

possession on basis of their title and also claimed

mense profits.

4.

The defendant (appellant) resisted the suit

mainly on the ground that his grandfather, namely,

Tirsing was the original owner of the suit properties.

He contended that the suit properties were purchased

by Tirsing in name of his eldest son i.e. Waman and it

was a benami transaction. He pointed out that Tirsing

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had three sons viz. (i) Waman, (ii) Mahipat and (iii)

Garbad. According to him, his father Mahipat and the

other two sons of Tirsing were joint in mess and

property. There was no partition between them. He

asserted that after death of Waman, the plaintiff no.1

had left the village. His father i.e. Mahipat incurred

expenditure for purpose of marriage of the plaintiff

no.2. The latter had relinquished her rights in the

joint family properties. He averred that subsequently,

the third brother, namely, Garbad died leaving behind

him two daughters. He contended that the suit was bad

due to non-joinder of said two daughters of deceased

Gadbad as they were the necessary parties to the suit.

It was his case that in or about 1950, the plaintiffs

surrendered their rights in his favour. Altern