1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 11245 OF 2009 IN SECOND APPEAL NO. 1767 OF 2005 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders CORAM : P.R. BORKAR.J. DATED : 28.04.2010 1. Present applicants are original plaintiffs, who had filed suit for declaration that the sale-deed executed by deceased respondent No.1 in favour of respondent No.2 is void and not binding on them. They also filed suit for partition and separate possession of their share. It is no more disputed that respondent No.1 Jaysing was father of applicant Nos. 1 to 3 and husband of applicant No.4. Respondent No.1 – Jaysing had executed sale-deed in respect of 40 R land of the family on 08.09.1997 in favour of respondent No.2. The Trial Court held that the transaction was not for legal necessity and therefore it was not binding on present applicants, who had 2 4/5th share in the suit property and therefore the Trial Court gave declaration that the sale-deed was not binding on the plaintiffs; & the plaintiffs are entitled to partition and separate possession of their 4/5th share. Direction was also given to pay deficit Court fees. The First Appellate Court came to the conclusion that the sale was for legal necessity and as such it was held that the sale- deed cannot be said to be not binding on the plaintiffs on the ground of want of legal necessity. However, the First Appellate Court held that the sale was void under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. 2. So far as present application is concerned, it is for directing respondent No.2 to deposit specific amount in the Trial Court every month towards occupancy charges. It is held by both the Courts that the consideration of Rs. 1,15,000/- had paid. It was received by deceased respondent No.1 – Jaysing. So, it is not that without paying any 3 consideration, respondent No. 2 was in possession illegally. Moreover, the applicants are still entitled to claim mesne profit, if they wish to do so by amending the plaint. In the facts and circumstances of the case, in my opinion, it would not be just to direct respondent No.2 - purchaser to deposit any occupancy charges. 3. The Civil Application is, therefore, dismissed and disposed of. [P.R. BORKAR,J.] snk/2010/APR10/ca11245.09