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Rakhamabai W/O Madhavrao Misal and ors. Vs. Asruba Dajiba Wanve and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 90 of 1976
Judge
Reported in1984(1)BomCR383
ActsCode of Civil Procedure (CPC) , 1908 - Order 20, Rule 14
AppellantRakhamabai W/O Madhavrao Misal and ors.
RespondentAsruba Dajiba Wanve and ors.
Appellant AdvocateR.M. Borde, Adv. for ;A.B. Naik, Adv.
Respondent AdvocateK.M. Kanade, Adv. for ;N.P. Chapalgaonkar, Adv. for respondent Nos. 1 and 2
DispositionAppeal dismissed
Excerpt:
- indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - as regards the right of plaintiffs, the law on this point is now well settled by the supreme court and in bhau ram v......defendant no. 6 sold the entire land to plaintiffs, to defendant nos. 2 to 5 together and to manik hari, father of defendant nos. 7 and 8 by a registered sale deed dated 24th april, 1957. according to the plaintiffs themselves, the entire land was being cultivated jointly by all the persons. according to the plaintiffs, the plaintiff no. 2 had four annas share whereas plaintiff no. 1, defendant nos. 2 to 5 and manik hari each had two annas share in this land.3. on 28th february, 1967, defendant nos. 2 to 5 and manik hari sold 3 annas 9 pies share to defendant no. 1 who is respondent no. 3 in this second appeal for rs. 700/- but the registered sale deed was yet to be completed. the present plaintiffs filed regular civil suit no. 52 of 1968 for enforcing their right of pre-emption,.....
Judgment:

D.B. Deshpande, J.

1. The only question in this second appeal is whether the plaintiffs have a right of pre-emption in respect of the suit land. Both the courts below have held that the plaintiffs have such a right and, therefore, the decree passed by the trial Court in favour of the plaintiffs confirmed by the lower Appellate Court by dismissing the appeal. This appeal arises out of the following facts.

2. Survey No. 126 of village Patoda in Beed District originally belonged to defendant No. 6. The total area of the land is 9 acres 29 gunthas. Defendant No. 6 sold the entire land to plaintiffs, to defendant Nos. 2 to 5 together and to Manik Hari, father of defendant Nos. 7 and 8 by a registered sale Deed dated 24th April, 1957. According to the plaintiffs themselves, the entire land was being cultivated jointly by all the persons. According to the plaintiffs, the plaintiff No. 2 had four annas share whereas plaintiff No. 1, defendant Nos. 2 to 5 and Manik Hari each had two annas share in this land.

3. On 28th February, 1967, defendant Nos. 2 to 5 and Manik Hari sold 3 annas 9 pies share to defendant No. 1 who is respondent No. 3 in this second appeal for Rs. 700/- but the registered Sale Deed was yet to be completed. The present plaintiffs filed Regular Civil Suit No. 52 of 1968 for enforcing their right of pre-emption, but subsequently they withdrew this suit because the Sale Deed was not yet completed. This Sale Deed was ultimately completed on 26th August, 1969. The plaintiffs alleged that they came to know of this Sale Deed on 27th August, 1969 and hence on the same day, they made the necessary two demands as required by law. As their demand was not complied with they filed Regular Civil Suit No. 197 of 1970 on 18th August, 1970 for enforcing the right of pre-emption.

4. This claim of the plaintiff was resisted on the ground that there were no demands as required by law and there was no right of pre-emption in favour of the plaintiffs.

5. After considering the entire evidence on record, the learned trial Judge held that the plaintiffs had a right of pre-emption and they proved the necessary demand and, therefore, the trial Court passed a decree in favour of the plaintiffs.

6. An appeal was taken to the District Court by some of the defendant but the learned Assistant Judge, who heard the appeal, agreed with the trial Court and dismissed the plaintiff's suit. Feeling aggrieved, only some of the defendants have filed this second appeal.

7. The only question that arises for consideration in this second appeal is whether the right of pre-emption accrues in favour of the plaintiffs and if the right accrues, whether the plaintiffs have proved the necessary two demands as required by law. As regards the right of plaintiffs, the law on this point is now well settled by the Supreme Court and in Bhau Ram v. Baij Nath Singh and others, : AIR1962SC1476 , the Supreme Court has laid down that persons who are co-sharers or who are akin to co-sharers have the right of pre-emption in respect of the land of their co-sharer. Supreme Court has further observed that the right of pre-emption based merely on the ground of vicinage is void. It is proved that plaintiffs and defendants and Manik Hari were jointly cultivating the land that was purchased. Even assuming for the moment that they were not jointly cultivating, it is clear that all of them purchased the land jointly and hence plaintiffs are positively co-sharers of defendants Nos. 2 to 5 and Manik Hari and, therefore, they have got the right of pre-emption.

8. The only other question is about the proof of two demands. After considering the oral evidence on record, both the courts below have held that the two demands are satisfactorily proved by the plaintiffs and it is purely a question of fact and no question of law whatsoever is involved in this issue. The concurrent finding of fact of both the courts is binding upon this Court, unless it is shown that the finding is perverse. Mr. R.M. Borde appearing for the appellant did not even canvass that this finding was perverse. Even otherwise, there is no perversity as such in the finding. Hence that finding is binding upon this Court.

9. Result is that there is no merit in this appeal and hence the appeal is dismissed. Costs of contesting respondents and the original defendants in one set.


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