Decided on July 14,1972

Deoram Ana Patil Appellant
Sonu Puna Patil Respondents


S.K. Desai, J. - (1.) THIS second appeal reached hearing before me on July 12, 1972, when it was pointed out that respondent No. 1 to this second appeal, Sonu Puna Patil (original plaintiff No. I in regular Civil Suit No. 34 of 1960) had died on October 10, 1968. It was further stated that although intimation to this effect had been conveyed to the appellants advocate on February 4, 1972 no steps have been taken by the appellants to bring Sonu's heirs on the record. On this admitted position I held that the appeal had abated as far as respondent No. 1 Sonu was concerned. The question which then remained to be considered was whether the appeal had abated qua respondent No. 2 and even if it be held that it had not abated could it be proceeded with against respondent No. 2.
(2.) MR . Ganpule on behalf of respondent No. 2 contended that the appeal could not be proceeded with only against respondent No. 2 because, if it was proceeded with and allowed, this would result in two inconsistent decrees in the same matter remaining on the record. After this contention was stated, Mr. Kotwal and Mr. Ganpule asked that the matter may be kept back for a few days and on their joint application it was kept till today for further arguments on this point. In order to appreciate the point it will be necessary to state a few facts. Sonu Puna Patil and Kautik Puna Patil filed regular Civil Suit No. 34 of 1960 against one Reshmabai, widow of Anna alias Ananda Patil. She died during the pendency of the suit and after her death her four heirs who are the appellants before me were brought on record of the suit as defendants. In the suit the plaintiffs sought a declaration that the sale of the suit land effected by them on November 15, 1948 in favour of Reshmabai was illegal and not binding on the plaintiffs. The plaintiffs also sought to recover possession of the suit land bearing survey No. 19/2 situated within the limits of village Bhatpuri in Taluka Parola. In the plaint as it was originally filed the sale -deed was attacked as benami, sham, bogus and without any consideration. It was further alleged that there was specific agreement that it was not to be acted upon. It was claimed that despite the sale -deed the plaintiffs continued to remain in possession of the suit land but, during their absence for about six years prior to the institution of the suit, Reshmabai had trespassed thereupon and was thereafter in possession of the suit land as a trespasser. Hence the plaintiffs brought the suit for a declaration that the sale -deed was not binding on them and for recovering possession of the suit land. The suit was filed in 1960. On March 16, 1961 the plaintiffs filed an application seeking an amendment of the plaint by adding para, 2A. This application was allowed although vehemently opposed on behalf of the defendants. The amendment was carried out and by the said amendment the plaintiffs contended that the sale -deed executed by the two plaintiffs in favour of Reshmabai was also hit by the provisions of section 40 of the Bombay Agricultural Debtors' Relief Act, 1947 as the two plaintiffs were then parties to a proceeding under the said Act and as the sale of the suit land was effected without the previous sanction of the Collector or the Court.
(3.) IN their written statement the four defendants (heirs of Reshmabai) denied all these contentions of the plaintiffs. It was also contended that the claim in suit was barred by limitation.;

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