once it was held that the sale of the suit property was made by the Karta ­ defendant No.3 and it was made for legal necessity and the benefit of the family, the same was binding on all the members of the family including the plaintiffs the plaintiffs failed to plead and prove that the sale in question was not for the benefit of family or that there was no legal necessity for such sale or as to on what basis, they claimed share in the suit property. On the other hand, defendant Nos.1 and 2 were able to prove that the sale was for the legal necessity and benefit of the family the plaintiffs themselves admitted in their evidence that they filed a civil suit at the instigation of defendant No.3 ­ their real brother. This clearly indicates that the suit was not filed for a bona fide cause but it was a collusive suit filed by the plaintiffs to overcome the valid decree obtained 11 by the defendant Nos.1 and 2 against defendant No.3 and to save defendant No.3 from its execution.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4282 OF 2019
(Arising out of S.L.P.(C) No.31350 of 2009)
Hirabai (D) Thr. L.Rs. & Ors. ….Appellant(s)
VERSUS
Ramniwas Bansilal Lakhotiya (D)
by L.Rs. & Ors. ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.

  1. Leave granted.
  2. This appeal is filed against the final judgment
    and order dated 19.12.2008 passed by the High
    Court of Judicature at Bombay, Bench at
    1
    Aurangabad in Second Appeal No.177 of 1988
    whereby the High Court dismissed the second
    appeal filed by the appellants herein and upheld the
    judgment of the Trial Court and first Appellate
    Court.
  3. A few facts need mention hereinbelow for the
    disposal of this appeal.
  4. This appeal is filed by the legal representatives
    of two original plaintiffs, who died after filing of the
    civil suit.
  5. The original two plaintiffs were the real sisters
    of defendant No.3 (respondent No.3 herein ­
    Shankarlal) and their father was late Motilal.
  6. There is a building named “Moti Building” in
    the city of Jalna, which consists of four houses,
    each bearing separate number, viz.,3484/3534,
    3485/3535, 3486/3536 and 3487/3537
    (hereinafter referred to as “the suit property”).
    2
  7. Defendant No.3/respondent No.3 sold the suit
    property to one Bansilal Shivlal by a registered sale
    deed dated 07.10.1965. On the death of Bansilal,
    defendant Nos.1 and 2/respondent Nos.1 and 2
    herein inherited the suit property as heirs of
    Bansilal and thus became the owners of the suit
    property.
  8. Since some dispute arose between defendant
    Nos.1 and 2 with defendant No.3 in relation to the
    suit property, defendant Nos.1 and 2/respondent
    Nos.1 and 2 herein filed a civil suit in the year
    1971, being CS No.48/1971 against defendant
    No.3/respondent No.3 Shankarlal and others
    (tenants in the suit property). The suit was for a
    declaration of title over the suit property and for
    permanent injunction in relation to the suit
    property. The suit was contested by defendant No.3.
    3
  9. By judgment/decree dated 31.01.1975, the
    civil suit (No.48/1971) was decreed in favour of
    defendant Nos.1 and 2/respondent Nos.1 and 2.
    The Trial Court inter alia held that defendant Nos.1
    and 2 are the owners of the suit property. This
    decree attained finality.
  10. Thereafter, a civil suit, out of which this appeal
    arises, was filed against the defendants
    (respondents herein). The suit was for a declaration
    that the decree dated 31.01.1975 passed in Civil
    Suit No.48/1971 is not binding on the two plaintiffs
    and that the sale deed dated 07.10.1965 executed
    by defendant No.3/respondent No.3 in favour of
    defendant Nos.1 and 2/respondent Nos. 1 and 2 in
    relation to the suit property is also not binding on
    the two plaintiffs.
  11. The suit was founded inter alia on the
    allegations that the suit property was an ancestral
    4
    property of the family in which the two plaintiffs ­
    who are the sisters of defendant No.3/respondent
    No.3 have an equal share along with defendant
    No.3. The plaintiffs alleged that since the suit
    property was sold by defendant No.3/respondent
    No.3 without their knowledge, authority and
    consent, the sale deed dated 07.10.1965 is null and
    void to the extent of plaintiffs’ share. The plaintiffs
    also alleged that since both the plaintiffs were not
    parties to Civil Suit No.48/1971, the decree dated
    31.01.1975 passed in the said suit is neither
    binding on them nor such decree affects their right,
    title and interest in the suit property.
  12. During pendency of the civil suit, wife, sons
    and daughters of defendant No.3/respondent No.3
    also joined the civil suit, either as plaintiffs or as
    defendants, some since inception and others at a
    5
    later stage. Defendant No.3, his wife, sons and
    daughters supported the plaintiffs’ case.
  13. The suit was contested only by defendant
    Nos.1 and 2, who were the purchasers of the suit
    property from defendant No.3.
  14. According to defendant Nos.1 and 2, first, the
    suit was barred by limitation because it was filed
    after three years from the date of decree dated
    31.01.1975; Second, it was bad in law because the
    plaintiffs failed to seek partition in relation to the
    entire properties owned by the family; Third, it was
    a collusive suit filed at the instance of defendant
    No.3/respondent No.3 to avoid execution of the
    decree against him; Fourth, the decree dated
    31.01.1975 passed in Civil Suit No.48/1971 was
    also binding on the two plaintiffs in the light of
    categorical finding recorded by the Civil Court in its
    judgment dated 31.01.1975; Fifth, in any case, the
    6
    two plaintiffs had no right, title and interest in the
    suit property; Sixth, even otherwise, the sale of the
    suit property having been made by a Karta of the
    family, i.e., defendant No.3 for the benefit of the
    family and for legal necessity, it is binding on the
    two plaintiffs including all members of the family;
    Seventh, a suit to challenge the decree passed by a
    competent Civil Court is not maintainable.
  15. The Trial Court, by judgment/decree dated
    16.10.1981, dismissed the suit and answered all the
    issues against the plaintiffs by upholding the
    objections raised by defendant Nos.1 and 2. The
    plaintiffs felt aggrieved and filed first appeal before
    the 2nd Additional District Judge. By judgment
    dated 09.05.1988, the first Appellate Court
    dismissed the appeal which gave rise to filing of
    second appeal by the plaintiffs in the High Court.
    By impugned order, the High Court dismissed the
    7
    second appeal, which has given rise to filing of the
    present appeal by way of special leave by the
    plaintiffs in this Court.
  16. So, the short question, which arises for
    consideration in this appeal, is whether the High
    Court was justified in dismissing plaintiffs’ second
    appeal and thereby was justified in upholding the
    judgment of the Trial Court and first Appellate
    Court which resulted in dismissing the suit.
  17. Heard Mr. Vinay Navare, learned senior
    counsel for the appellants and Mr. Nishant
    Ramakantrao Katneshwarkar, learned counsel for
    the respondents.
  18. Having heard the learned counsel for the
    parties and on perusal of the record of the case, we
    find no merit in this appeal.
  19. In our view, all the three Courts (Civil Judge,
    first Appellate Court and the High Court) were right
    8
    in their reasoning and the conclusion on all the
    factual and legal issues raised by defendant Nos.1
    and 2 and we find no good ground to differ with
    their reasoning and the conclusion.
  20. First, the findings impugned in the appeal
    being concurrent in nature, were not only binding
    on the High Court while deciding the second appeal
    and were rightly held to be so binding but such
    findings are binding on this Court too; Second, even
    otherwise, all the findings have been recorded on
    proper appreciation of facts and law and hence do
    not call for any interference in this appeal as
    detailed infra.
  21. Third, the suit in question was apparently a
    collusive suit filed at the behest of defendant No.3
    through his two sisters and family members to
    avoid execution of a valid decree dated 31.01.1975
    9
    passed by the competent Civil Court against
    defendant No.3 in relation to the suit property.
  22. Fourth, in the light of findings recorded by the
    Trial Court in the previous suit in Para 18, the
    present suit was rightly dismissed by all the Courts
    below. It is apposite to quote the finding of the Trial
    Court recorded in Para 18 which reads as under:
    “18. The sale deed has been executed by
    Shankarlal, who is admittedly the Karta of
    the family. According to the own statement
    of defendant No.1, he was in need of money
    for paying his dues to different persons. He,
    therefore, sold the house in favour of
    Bansilal. Defendant No.1 cannot raise the
    objection that, other heirs of Motilal should
    be impleaded as defendants. It is for the
    other heirs, if any, of late Motilal to take
    recourse to proper remedy in case they fell
    that, the alienation of the suit house was not
    in the interest of the family. Other heirs of
    Motilal are not necessary parties to this suit.
    Issue No.8 is decided against the
    defendants.”
  23. The aforesaid finding, in our view, not only
    binds defendant No.3 but also binds the two
    plaintiffs being the members of the same family.
    10
  24. Fifth, once it was held that the sale of the suit
    property was made by the Karta ­ defendant No.3
    and it was made for legal necessity and the benefit
    of the family, the same was binding on all the
    members of the family including the plaintiffs.
  25. Sixth, the plaintiffs failed to plead and prove
    that the sale in question was not for the benefit of
    family or that there was no legal necessity for such
    sale or as to on what basis, they claimed share in
    the suit property. On the other hand, defendant
    Nos.1 and 2 were able to prove that the sale was for
    the legal necessity and benefit of the family.
  26. Seventh, the plaintiffs themselves admitted in
    their evidence that they filed a civil suit at the
    instigation of defendant No.3 ­ their real brother.
    This clearly indicates that the suit was not filed for
    a bona fide cause but it was a collusive suit filed by
    the plaintiffs to overcome the valid decree obtained
    11
    by the defendant Nos.1 and 2 against defendant
    No.3 and to save defendant No.3 from its execution.
  27. In the light of the foregoing
    discussion/reasons, we find no good ground to
    interfere in the impugned order, which is based on
    proper appreciation of facts and law governing the
    issues.
  28. The appeal, is therefore, found to be devoid of
    any merit. It is accordingly dismissed.
    .……………………………………..J.
    [ABHAY MANOHAR SAPRE] ……………………………………….J.
    [DINESH MAHESHWARI]
    New Delhi;
    April 25, 2019
    12