1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.439 OF 2008 ALONGWITH CIVIL APPLICATION NO.1100 OF 2008 Mr.Vilas Keru Khillari ..... Appellant vs. Mr.Mayappa Rakhamaji Khillari ..... Respondents & Ors. Mr.Anoop R.Pandey, Advocate for appellant. Mr.Shrishail Sakhare,Advocate for respondents no. 1 to 4. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 18th November, 2009. PC : 1. Respondent no.1 herein had filed suit for partition and separate possession which was decreed on 22nd March 2002. The decree was sent to the Collector under Section 54 Code of Civil Procedure for execution. However, the decree came to be returned to the trial Court as there was obstruction to the decree by the appellant abovenamed. The appellant then filed say/application (Exhibit 27) to the trial Court in the execution proceedings for protection of his possession and confirmation of his title as he claimed to be bonafide purchaser of gat No.2774. He contended in his application that one of the members of the joint family had alienated the disputed property to him prior to filing of the suit for partition. Admittedly the property in dispute forms part of the joint family 2 properties and subject to partition. The trial Court considered the application, which was in the form of a say to the execution proceedings and not an independent application under Order 21, Rule 97 of Code of Civil Procedure and held that the same was not maintenable. Nonetheless by way of abundant caution, it treated the same as an application for removal of obstruction under Order 21, Rule 97 of Code of Civil Procedure and permitted the appellant to lead evidence thereon. The entire procedure required to be followed under Order 21, Rule 97 of Code of Civil Procedure was followed and the application dismissed on merits holding that the appellant had failed to prove any legal necessity on the part of his vendor in selling the property in dispute. The appellant also failed to establish that he is a bonafide purchaser for value of the disputed property without notice of the rights of other members of the joint family. The order of rejection of his application was carried in appeal by the appellant by filing Regular Civil Appeal No.266 of 2007 in the District Court, Sangli. By the impugned judgment and order, the appeal court has confirmed the decision of the trial Court and dismissed the appeal. 2. Mr.Pandey, learned counsel for the appellant submits that both the courts below were in error in holding that the application of the appellant in the form of say was not maintenable and that the appellant was required to file an independent application under Order 21, Rule 97 of the Code of Civil Procedure. Since despite 3 that finding, the courts below granted full opportunity of hearing on merits by practically treating the say as an application under Order 21, Rule 97 of the Code of Civil Procedure, the appellant can have no grievance in that respect. As regards the merits of the case, there is concurrent finding of fact of the courts below that the appellant cannot be said to be bonafide purchaser for value without notice of the rights of other family members of the property in dispute. It has also been held on appreciation of evidence that the sale of joint family property was not for any legal necessity. These concurrent finding of facts being supported by the evidence led before the Court cannot be disturbed in the Second Appeal. There is no substantial question of law arising in the matter for consideration of the Court. Hence, the Second Appeal is dismissed. 3. In view of the dismissal of the Second Appeal, the Civil Application does not survive, the same is accordingly dismissed. (Smt.R.P.SondurBaldota, J.)