1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.130 OF 2009 1 Rohan s/o Suresh Kunjir, age: 14 years, Occ: Student, u/g of his father Suresh s/o Shivhari Kunjir. 2 Suresh s/o Shivhari Kunjir, age: 36 years, Occ: Agriculture, Both R/o Bhala, Tq. Ausa, District Latur. Appellants Versus 1 Sau. Renubai @ Laxmibai w/o Khandu Kunjir, age: 32 years, Occ: Household; 2 Manisha d/op Khandu Kunjir, age: 14 years, Occ: Nil, U/g of her mother i.e. Respondent No.1. 3 Nikita d/o Khandu Kunjir, age: 5 years, Occ: Nil, U/g of her mother i.e. Respondent No.1. 4 Khandu s/o Rajaram Kunjir, age: 37 years, Occ: Agricutlure, All R/o Bhada, Tq. Ausa, District Latur. Respondents Mr.Amit Deshpande, advocate for appellants. Mr.B.N.Patil, advocate for Respondents No.1 to 3. 2 CORAM: R.M.BORDE, J. DATE : 18 th February, 2010. P.C.: 1 Appellants - defendants no.2 & 3 are raising exception to the judgment and decree dated 14.01.2009, passed by District Judge-1, Latur in Regular Civil Appeal No.173/2007. 2 Plaintiffs – Respondents No.1 to 3 herein instituted suit bearing RCS No.202/2003 claiming partition of ancestral properties as well as for declaration that sale effected by defendant no.1 in favour of defendants no. 2 & 3 - appellants herein does not bind their right, title and entitlement to the property. It is contended by plaintiffs that defendant no1, who is husband of plaintiff no.1 and father of minor plaintiffs no.2 and 3, alienated ancestral property in favour of defendant no.2 without there being any legal necessity. It is contended that defendant no.1 was addicted to bad vices and in order to meet expenses for his bad vices, he alienated suit property in favour of defendant no.2. 3 Defendant No.1 did not file his written statement. However defendants no.2 and 3 appeared and resisted suit by filing written statement. According to defendants no.2 and 3, they were in possession over suit property since 2001 on the basis of batai patra and defendant no.1 has alienated the property in their favour by executing agreement to sell on 29.11.2002 and sale deed on 23.05.2003. It is contended that prior to execution of agreement to sell as well as sale deed, defendants no.2 & 3 were in possession of suit land on the basis of tenancy agreement. Defendant no.1 was running a hotel at Latur and in order to meet expenses of business, he was in need of finance, as such, he alienated the property in 3 favour of defendant no.2. It is also contended that defendant no.1 has alienated the property for legal necessity. 4 The trial Court, on the basis of pleadings of the parties, framed issues and on receiving evidence, dismissed suit presented by plaintiffs. However, issue in respect of legal necessity has been answered against defendants. The unsuccessful plaintiffs preferred an appeal to the first appellate Court, being Regular Civil Appeal No.173/2007, which was heard and disposed of by District Judge-1, Latur, who was pleased to allow same by judgment and decree dated 14.01.2009, thereby holding plaintiffs entitled for partition and separate share to the extent of 3/4 th. However, defendant no.1 is held entitled to have 1/4 th share. The sale deed executed by defendant no. 1 in favour of defendants no.2 and 3 is held valid only to the extent of his 1/4 th share in the suit property. The first appellate Court has also confirmed finding in respect of legal necessity in making alienation by defendant no.1. 5 I have perused judgments recorded by both the Courts below and heard arguments advanced by learned Counsel for respective parties. 6 The burden of proving legal necessity rests on defendants no.2 and 3. In the pleadings, defendants no.2 and 3 have contended that alienation is effected by plaintiffs for collecting finance for running hotel business. Although it is contended by defendants no.2 and 3 that they were in possession over the suit property on the basis of batai patra prior to execution of agreement to sell as well as sale deed, there is no evidence forthcoming in that regard. Although defendants specifically contend that there was a batai patra executed by defendant no.1, which bears signature of plaintiff no.1, however, same has not been placed on record. In this view 4 of the matter, contention raised by defendants that they were in possession over the property prior to alleged alienation and their induction in possession was consented to by plaintiff no.1, has not been established by them. Learned Counsel for appellants contends that there is recital in the sale deed to the effect that the alienation is being made for family necessities. However, there is no evidence led to substantiate or support reasons (for making alienation), recited in the sale deed. 8 It is to be noted that although there is recital in respect of sale being effected for meeting family needs contained in the sale deed, defendants have taken a defence that alleged sale by defendant no.1 in favour of defendants no.2 and 3 is for securing finance for running ongoing hotel business. The defence raised in the written statement is also not in consonance with the recital. Apart from this, there is no evidence to draw an inference that defendant no.1 was running hotel business at any point of time. The fact of running business by defendant no.1 has been specifically denied by plaintiffs. In these circumstances, the concurrent view taken by Courts below that defendants no.2 and 3 have failed to establish existence of legal necessity does not appear to unreasonable or improper. No interference is called for in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 9 Appeal, therefore, stands dismissed. Pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa130.09