1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 449 OF 2004 Janardhan s/o Tukaram Kitale .. APPELLANT VERSUS Kisan s/o Shankar Katkade & others .. RESPONDENTS Mrs. M.A. Kulkarni, Advocate for the appellant. Mr. V.R. Naik, Advocate for respondent nos. 1, 2B, 2C, 2E, 3C, 4A and 4B. Respondent nos. 2A-1, 3A-1, 3B, 2(4) and 5(1) served. ===== CORAM : R. M. BORDE, J. DATE : 5 th October, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted suit claiming decree of perpetual injunction against the defendants from interfering in the possession of plaintiffs over land to the extent of 5 acres and 18 gunthas out of block no. 261 situate at village Hastepimpalgaon, Tq. & Dist. Jalna. Plaintiff also claims declaration that the decree passed in Regular Civil Suit no. 234/1978 presented by defendant no. 2 1 Kishan is not binding on the rights of the plaintiff and proceeding taken out by defendant for executing decree is illegal and has no binding effect on the rights of the plaintiff. Plaintiff claims recovery of possession of area to the extent of 4 acres which has been handed over to defendant no. 1 in execution of the decree passed in Regular Civil Suit no. 238/1978. Plaintiff claims that one Dagdu was his real brother. He died some 30 years back. Brothers were joint till 1981 and Dagdu being the elder brother was acting as Karta of the family. Plaintiff further contends that there was partition between the parties effected in 1981 and the suit property, according to the plaintiff is allotted to his share. Deceased Dagdu had no entitlement to alienate the portion which had fallen to the share of plaintiff, by executing sale-deed in favour of the defendant. In order to secure specific performance of the alleged agreement to sell, Kishan filed suit bearing Regular Civil Suit no. 238/1978 against Dagdu. Decree was passed in favour of Kishan. Kishan, in order to execute the decree passed in Regular Civil Suit no. 238/1978, presented Regular Darkhast no. 13/1981. In execution of the decree, according to plaintiff, he was dispossessed and defendant no. 1 has assumed possession of 4 acres land. Plaintiff contends that he was not party to earlier suit i.e. Regular Civil Suit no. 238/1978 and as such, defendant no. 1 was not entitled to execution of said decree against plaintiff. Dispossession 3 of plaintiff in execution of the decree is illegal. Plaintiff, who is having entitlement to the said property in view of partition effected between the brothers is seeking recovery of possession. 3 Defendant appeared and resisted the suit by filing written statement. According to him, deceased Dagdu had agreed to sell an area to the extent of 4 acres of land from eastern side out of gat no. 269 for consideration of Rs.10,000/-. Deceased Dagdu was in need of money and as such he executed agreement. As Dagdu failed to execute the sale- deed, defendant no. 1 was constrained to file Regular Civil Suit no. 239/1978 claiming specific performance of contract. Suit was decreed in his favour. On deposit of amount of consideration, plaintiff in the said suit i.e. defendant herein became entitled to specific performance of contract. It is contended that in execution of the sale-deed he has received possession of the disputed property. Defendant has denied the theory of partition put up by plaintiff and has contended that deceased Dagdu was the elder brother and being elder brother and Karta of the family, he has alienated the property in his favour. It is contended that Dagdu was in need of money and as such he alienated the land in his favour. 4 4 Trial court after considering the evidence led by the parties, came to the conclusion that plaintiff has not substantiated his case and as such dismissed the suit. Judgment and decree passed by the trial court was subjected to challenge in Regular Civil Appeal no. 44/1995 which came to be heard and disposed of by the 3 rd Additional District Judge, Jalna who was pleased to dismiss the same on 11-9-2003. 5 I have perused the judgments recorded by both the courts below and heard arguments advanced by learned counsel for the respective parties. On perusal of the judgments, it transpires that although plaintiff has claimed that there was partition effected between the brothers in 1981, however, there is absolutely no evidence placed on record to prove the contention in respect of separation in the year 1981. Trial court as such has recorded finding of fact that plaintiff has failed to establish his case in respect of partition alleged to have been effected between the brothers in the year 1981. It has also been observed by the trial court that Regular Civil Suit no. 238/1978 was presented by defendant no. 1 seeking specific performance of agreement dt.4-11-1974. Deceased Dagdu on securing earnest amount of R$s.8,000/- executed agreement to sell in favour of defendant. Said agreement to sell bears signatures of plaintiff Janardhan and one 5 Balaprasad. Thus, agreement to sell was executed in the year 1974. In this view of the matter, case put up by plaintiff in respect of subsequent partition in the year 1981 and disputed property having fallen to his share by virtue of said partition does not get any support. 6 It has been urged by learned counsel for the appellants that there was no necessity for deceased Dagdu to alienate the property in favour of defendants and as such alienation made by Dagdu does not bind the right, title and entitlement of the plaintiff. However, plaintiff has not pleaded in plaint in that respect. There is absolutely no whisper in the plaint to the effect that the alleged transaction does not bind the plaintiff on account of want of legal necessity. In the absence of such pleading, the issue need not be considered. Apart from this aspect, deceased Dagdu or anybody claiming through him has not been impleaded as party to the suit. As such, argument in respect of legal necessity advanced by plaintiff for the first time in the instant appeal need not be considered. 7 The plaintiff is claiming entitlement in respect of an area to the extent of 4 acres and 18 gunthas. According to plaintiff, trial court ought to have considered the case put up by plaintiff in respect of the remaining area. 6 Apart from the fact that plaintiff has failed to establish the foundation of the case namely alleged partition between plaintiff and his brother, the defendant has put forth his defence in respect of entitlement to 4 acre area only. Learned counsel for defendant no. 1 has invited my attention to fact that his client’s case is limited in respect of purchase of area to the extent of 4 acres on the basis of agreement to sell executed by deceased Dagdu in the year 1974 and defendant no. 1 is not claiming anything more. In this view of the matter, issue raised by plaintiff need not be considered. Appeal is devoid of merit hence stands dismissed summarily. 8 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa449.04.odt