VENKATARAO ANANTDEO JOSHI Vs. SAU MALATIBAI
SUPREME COURT OF INDIA (FROM: BOMBAY)
VENKATARAO ANANTDEO JOSHI
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Shah, J. -
(2.)In appeal from Order No. 48 of 1997, the High Court of Bombay, Bench at Aurangabad by its judgment and order dated 12-7-2001 dismissed the appeal and confirmed the order passed by the Additional District Judge, Latur in Regular Civil Appeal No. 314 of 1993 directing the trial Court to frame a specific issue on the point of tenancy and to refer it to the competent Court for its determination under the Tenancy Act.
Before deciding the question involved, brief resume of facts is necessary. Appellant No. 1 Venkatrao Anantdeo Joshi and his mother Bhagirathibai (since deceased) filed Civil Suit No. 51 of 1973 for partition against Anantdeo (father of appellant No. 1 since deceased) and Malatibai (wife of appellant No. 1). It was alleged that Anantdeo and Malatibai were residing separately from appellant No. 1 and his mother at different place. The suit was filed for partitioning the joint family property, namely, agricultural land in Survey No. 60/A admeasuring 7 acres 3 gunthas, a house and plot at village Hippalgaon, Taluka Nilanga, District Latur. It was contended that Anantdeo had transferred a portion of ancestral property in Survey No. 60/A in favour of defendant No. 3 (Malatibai) by a registered sale deed dated 25-4-1973. It is alleged that Anantdeo was the person of easy virtue and was having drinking habits and was staying in the company of one Baburao @ Tukaram Khandekar and Malatibai. The so-called transfer in favour of Malatibai was illegal. By judgment and decree dated 10-10-1979, preliminary decree for partition was drawn up holding that Venkatrao and Bhagirathibai were entitled to 2/3rd share in the entire property. The Court considered the various contentions raised by Anantdeo and arrived at the conclusion that it was joint family property and that defendant No. 1 had no right to transfer it. The Court directed the Collector or any Gazetted subordinate officer to effect the partition of the suit property and separate possession and also directed the Court Commissioner to effect the partition of the suit house and the plot. The Court also directed mesne profits from the date of the suit until delivery of possession.
(3.)Against that preliminary decree, Anantdeo and Malatibai had filed Regular Appeal No. 130/1979, which was dismissed on 31st December, 1981. Thereby, the preliminary decree for partition became final. Pending the said appeal, respondent No. 3 Baburao filed a suit being Regular Civil Case No. 288 of 1981 for injunction against Anantdeo and Malatibai, that is, father and wife of the present appellant No. 1 praying that they should be permanently restrained from causing interference into the peaceful possession over the suit land and claimed tenancy rights over the suit property bearing Survey No. 60/A. A compromise decree was obtained on 23rd November, 1981.
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