1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 203 OF 2009 Devidas s/o Yashwant Sahare & others .. APPELLANTS VERSUS Jabbarkhan s/o Mohiuddin & others .. RESPONDENTS Mr. V.N. Damle, Advocate holding for Mr. S.K. Barlota, Advocate for the appellants. Smt. Chincholikar, Advocate for respondent no. 2. ===== CORAM : R. M. BORDE, J. DATE : 5 th October, 2009. PER COURT : 1 This is an appeal by original defendants raising exception to the judgments and order passed by the 3 rd Additional District Judge, Jalna on 26-4-2000 thereby allowing the appeal presented by original plaintiffs and granting decree in their favour in respect of recovery of possession of the suit property. Plaintiffs have claimed recovery of possession of the property on the strength of his title. According to plaintiffs, on demise of their father, they became owner of the property in question. Defendants are illegally in possession of the property. Defendant no. 1 has alienated the property in favour of defendant nos. 2 to 5 by executing sale-deed. The sale-deeds are 2 void. According to plaintiff, defendant no. 1 had no title of the property and was not competent to execute the sale-deed in favour of other defendants. Plaintiffs as such claim recovery of possession of the property. 3 Defendants appeared and resisted the claim by filing written statement. Defendant no. 1 claims that he has agreed to purchase the suit property from the father of plaintiffs and agreement to sell to that effect was executed on 16-1-1965. Defendant no. 1 further contends that he had made alienation of the property in favour of defendants under presumption that he holds entitlement in himself. Defendant no. 1 has also raised defence under section 53A of the Transfer of Property Act. Defendant nos. 2 to 5 presented their written statement and contended that they are bonafide purchasers of the suit property for valuable consideration. 4 Trial court after recording evidence of the parties dismissed the suit. Defendants being aggrieved by the judgment passed by the trial court preferred appeal being Regular Civil Appeal no. 35/1992 which came to be heard and disposed of by the 3 rd Additional District Judge, Jalna who was pleased to allow the same. 3 5 I have perused the judgments recorded by both the courts below. It is not controverted that there was no sale-deed executed in favour of defendant no. 1. Defendant no. 1 claims his entitlement to the property on the strength of agreement to sale. It is also admitted that defendant nos. 2 to 5 have purchased the suit property from defendant no. 1 and are put in possession of the property. In these circumstances, there is no difficulty in reaching conclusion that defendant no. 1 was not invested with the title as no sale-deed was executed in his favour by either plaintiffs or their father. Defendant no. 1 as such was not competent to dispose of the property in favour of other defendants. Sale-deeds executed by defendant no. 1 in favour of other defendants cannot bind the plaintiffs. Learned counsel for the appellants has strenuously urged that although plaintiff is seeking declaration in respect of his title, the suit is not presented within limitation. From the facts stated above it can be inferred that defendant no. 1 has made alienation in favour of other defendants without any authority. Sale- deeds executed by defendant no. 1 in favour of other defendants have no binding effect on the plaintiffs. In these circumstances, so far as entitlement of plaintiffs is concerned, the sale-deeds executed by defendant no. 1 in favour of other defendants cannot bind the plaintiffs. So far as question of limitation is concerned, defendant no. 1 although has raised defence under 4 section 53A of Transfer of Property Act, he could not substantiate the same. Other defendants also cannot claim adverse possession as they claim title in respect of the property in themselves. Appellate court was therefore justified in turning down the defence raised by defendants based on section 53A of the Transfer of Property Act as well as defence on the basis of adverse possession. Plaintiffs have established their case and as such they are entitled to seek relief of possession. The first appellate court has not committed any error in granting decree in favour of plaintiffs. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa203.09.odt