- (1.) This appeal by the plaintiffs has been directed against the judgment of the High court of Bombay affirming the judgment and decree passed by the first appellate court reversing the judgment and decree passed by the trial court whereby the plaintiffs' suit for partition and separate possession of their 2/3rd share was decreed.
(2.) The appellant Shantinath Ramu Danole and his mother Housabai (since deceased) filed the suit against the defendant-respondent for separate possession of their 2/3rd share in the suit property by partition. Plaintiff 1 Shantinath Ramu Danole claimed to be the son of deceased Ramubabu Danole and Plaintiff 2 (mother of Plaintiff 1) deceased Housabai claimed to be his widow. The defendant-respondent is the son of deceased Rarnubabu from his first wife Rajubai. The plaintiffs pleaded that the suit properties were ancestral properties of deceased Rarnubabu Danole who died on 20/12/1973, his first wife having died earlier when the defendant-respondent was aged about one year only. After the death of his first wife Rajubai, deceased Rarnubabu Danole married Smthousabai, the mother of the appellant about 35 to 40 years ago from the date of filing the suit. It was alleged that when Housabai was pregnant she was turned out of his house by Rarnubabu Danole and she was forced to live with her parents at Upalai. The plaintiffs claimed that they had 2/3rd share in the ancestral property left behind by the deceased Rarnubabu Danole. It was alleged that since defendant-Respondent 1 claimed to be the exclusive heir of deceased Rarnubabu and denied any share to the plaintiffs in the suit property they filed the suit for possession of their 2/3rd share in the same by partition. The plaintiffs also alleged that during the pendency of the suit the respondent had sold the land bearing Gat No. 461 to defendant-Respondent 2 on 7/1/1977 which is not binding on them. It was also alleged by the plaintiffs that Defendant 1 also created some encumbrance of defendant-Respondent 3 on the property for which Respondent 1 alone was liable. Defendant 1 resisted the suit filed by the plaintiffs by pleading that plaintiff-Appellant 1 was not the son of deceased Ramubabu nor Plaintiff 2 Housabai (since deceased) was the wife of deceased Ramubabu as he had never married Housabai. Defendant 1 claimed to be the only son of deceased Ramubabu and to be the exclusive owner of the suit property. Defendant 1 admitted that he had sold Gat No. 461 to Defendant 2 for the purpose of repaying the debts of his father and that the deceased Ramubabu had also taken loan from the Bank Defendant 3 for construction of a well which had to be repaid. He also took the plea that out of the consideration received from Defendant 2 he had repaid the debts of his father. Defendant 2 in his separate written statement took the plea that Defendant 1 is the exclusive owner of the suit property and that he was purchaser from him for value without any knowledge about the pendency of this suit. Defendant 3 in its written statement took the plea that the deceased Rarnubabu had taken loan of Rs. 5,000. 00 from the Land Development Bank after mortgaging his said Gats Nos. 655 and 659 as security for repayment of the loan.
(3.) On evaluation of the oral and documentary evidence on record the trial court recorded the finding that the plaintiffs have proved the factum of marriage of deceased Housabai, Plaintiff 2 with deceased Ramubabu Danole and plaintiff- Appellant 1 was born out of the said wedlock. The trial court also recorded the finding that it was not established that Defendant 2 was a bona fide purchaser of the said Gat No. 461 and that the said sale was not binding on the plaintiffs. It was also held that since the lands bearing Gats Nos. 655 and 659 were mortgaged by the deceased Ramubabu Danole himself to Defendant 3 and obtained a loan of Rs. 5,000. 00 for digging the well, the plaintiffs should bear the proportionate share for repayment of the loan amount due to Defendant 3. The trial court having found the said property as the ancestral property in which the plaintiffs had 2/3rd share and, therefore, on the aforesaid findings passed a decree in favour of the plaintiffs for possession of 2/3rd share by partition against Defendant 1. However, on appeal by defendant-Respondent 1, the first appellate court set aside the judgment and decree passed by the trial court holding that it was not established that deceased Plaintiff 2 Smt Housabai was wedded to the deceased Rarnubabu Danole and that Plaintiff 1 was born out of that wedlock. This judgment of the first appellate court was upheld by the High court in second appeal by dismissing the same in limine against which this appeal by special leave has been directed.;