Ankush v. Vaijanta

plaintiff against the Judgment and decree dated 21st December, 2006 passed by Ad-hoc District Judge-1, 2 Majalgaon in Regular Civil Appeal No.61 of 2004 arising out of the Judgment and decree dated 2nd February, 2000 passed by Joint Civil Judge, Junior Division, Kaij in Regular Civil Suit 283 of 1995. The Respondent is original defendant.

The Appellant filed a suit claiming right under Section 22 of Hindu Succession Act, 1956 in respect of 3 Acres and 5 Gunthas land from field Gut No.156 of village Asola, Taluka Dharur, Dist-Beed. Allegations in the plaint reveal that the suit property belonged to the joint family comprising of the plaintiff and his family members. The plaintiff's grand father Baban filed a suit for partition and for getting half share from field Gut No.156. The said Regular Civil Suit No.138 of 1990 filed before Civil Judge, Junior Division, Kaij terminated into a compromise dated 2nd July, 1992. In view of the terms of the compromise, the Respondent/ original defendant got 3 Acres 5 Gunthas land to her share which is the suit land. It is the case of the Appellant that he learnt that the Respondent is trying to dispose of the suit land. It is the case of the Appellant that at the 3 time of compromise, the Respondent agreed that she would sale the suit land to the plaintiff i.e. Appellant herein when she thought of selling the same. It is the case of the Appellant that Appellant is having preferential right to purchase the suit property and as the same was refused by the Respondent, the Appellant filed the suit claiming preferential right to purchase the suit land i.e. 3 Acres and 5 Gunthas. The Appellant mainly relied on the compromise deed dated 2nd July, 1992. Both the Courts considered the terms and conditions of compromise dated 2nd July, 1992 filed in Regular Civil Suit No.138 of 1990. Both the Courts held that terms of compromise nowhere revealed that the Respondent/ original defendant Vaijanta w/o Bhagwan Waghmare agreed to sell the suit property to the Appellant whenever she thought to dispose of the suit property. The entire dispute is based on compromise deed only.

Learned counsel appearing on behalf of the Appellant submitted that the Courts below have not considered the provisions of Section 22 of Hindu Succession Act for the purpose of preferential right 4 of the Appellant to purchase the share of the member of the family. Considering the Judgments of both the Courts, it is crystal clear that nowhere it is stated in the compromise deed that the Respondent agreed to sell the suit property to the Appellant whenever she thought of disposing of the suit property. In view of compromise deed Appellant cannot take shelter of Section 22 of Hindu Succession Act. As the Appellant failed to prove these facts from compromise terms, there is no substance in the present Second Appeal and the same is dismissed with no order as to the costs.

In view of the dismissal of the Second Appeal, nothing survives in the Civil Application No. 1002 of 2008 and the same is rejected. (K.K. TATED, J.) asb/JUN09/sa66.08