1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 678 OF 2005 Ambadas Madhavrao Kulkarni ( Chinchpure) Appellant Versus Kunjilal Fakirchand Dosad ( Deceased through LRs) Respondent Mr. M.D. Joshi, advocate for the appellant. Mr. P.F. Patni, advocate for Respondents. ===== CORAM: R.M.BORDE, J. DATE : 24th September, 2009. PER COURT : 1 This is an appeal by original defendant raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted Regular Civil Suit no. 160/2002 claiming recovery of possession on the basis of title and previous possession of first floor of Grampanchayat house no. 751 of village Undangaon, Tq. Sillod. According to plaintiff, the suit property is purchased by plaintiff in the year 1956­1957 from defendant and was put in possession on the basis of the registered sale­ deed. It is contended that in May 1984, defendant requested plaintiff to hand over possession of the suit house for temporary duration. Defendant 2 however, did not vacate the suit premises as promised by him and as such, plaintiff was required to approach the court seeking possession of the suit premises. 3 Defendant appeared and resisted the claim by filing written statement. Defendant contends that plaintiff cannot claim his title over the property as the transaction on the basis of which plaintiff claims his title is infact money lending transaction. Property belongs to the joint family. It is contended that father of the defendant was indebted to Ambadas Mahajan and in order to repay debt of Ambadas the property was sold to defendant on obtaining loan of Rs.1200/­ in the year 1956. Defendant as such claims that plaintiff cannot claim himself to be the owner and is not entitled to secure possession from the defendant. 4 Trial court on the basis of pleadings framed issues and after receiving evidence led by the parties arrived at conclusion that plaintiff has established his case and as such while granting decree in favour of plaintiff has directed defendant to handover vacant possession of the suit house in favour of the plaintiff. Judgment and decree passed by the trial court was subjected to appeal in Regular Civil Appeal no. 212/2002 which came to be heard and disposed of by the Extra Jt. District Judge, Aurangabad who was pleased to 3 dismiss the same on 14­7­2004. 5 I have perused the judgments recorded by both the courts below. It transpires on perusal of record that previously Regular Civil Suuit no. 22/1989 was presented by Ambadas Mahajan against the present plaintiff as well as one Keshav Kulkarni who was acting as manager of defendant's family. Alienation in question made in favour of plaintiff was subject matter of challenge in the suit. Keshav did not contest the suit and suit proceeded ex­ parte. It was held in the said litigation that the transaction of sale in favour of plaintiff by the defendant is valid. In execution proceeding bearing Regular Darkhast no. 62/1956 presented by Ambadas wherein the present plaintiff and defendant were parties, question regarding title of plaintiff was agitated wherein it was held that the title is passed in favour of the plaintiff on the basis of sale­deed executed earlier. Thus, in the earlier litigation there is finding recorded by the court of competent jurisdiction in respect of validity of sale effected in favour of the defendant. In the earlier litigation, it was not contended that the sale is nominal one and does not bind the interest of the defendant. Having failed to raise such contention, defendant cannot be permitted to raise such defence in the instant suit. Reasons recorded by the courts below are reasonable and proper and do not call for any interference in exercise of powers under section 100 of the Code of Civil Procedure. No 4 substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa678.05.odt.