IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 625 OF 2008 with CIVIL APPLICATION NO. 1636 2008 Bapu Soma Rasal ..... ...... ......Appellant. V/s Smt.Leelabai Mahadev Kakade & Ors. . ......Respondents. Mr.M.S.Lagu, Adv. For the appellant. Smt.Vrushali Tapkir, Adv. For the respondents. CORAM: A.P.DESHPANDE, J. 9th JANUARY, 2009. PC: The present appellant in this second appeal is the original plaintiff who instituted a suit for declaration that the decree passed in Regular Civil Suit No.1203/91 is obtained by misrepresentation and fraud and hence not binding on the plaintiff-appellant. The trial Court dismissed the suit and the first appellate court by dismissing the appeal confirmed the judgment and decree passed by the trial court. The plaintiff-appellant' s grant father purchased land under registered sale deed dated 5.4.44. After the death of Damu Rasal predecessor- in-title of the defendant/respondent' s names of sons were taken on revenue record. In the year 1991 defendant No.1-daughter of Dhondiba Rasal instituted regular civil suit No.1203/91 for partition 1 and separate possession against 16 persons including the plaintiff. Written statement came to be filed by the plaintiff wherein it was categorically averred that the plaintiff (defendant in the earlier suit) has no objection for partition of the suit land except 54 Ars land. Thus the present plaintiff restricted his right to land admeasuring 54 ars from and out of the land transferred under the sale deed dated 5.4.44. Acting on the said stand taken by the present plaintiff viz. restricting right to the extent of 54 ars land the plaintiff in the earlier suit No.1203/91 deleted the present plaintiff from array of defendants for the obvious reason that the plaintiff in RCS No.1203/91 accepted the title of the present plaintiff to the extent of 54 ars of land. After deleting the present plaintiff from the array of defendants in the earlier suit the parties to the said suit entered into compromise and decree for partition and separate possession came to be passed. The said decree does not include the plaintiff's land to the extent of 54 ars in regard to which the present plaintiff had claimed right, title and interest. Belatedly in the year 2001 the plaintiff instituted a Regular civil suit No.104/2001 seeking a declaration that the decree passed in RCS No.1203/91 is not binding on him as the same was obtained by misrepresentation and fraud by the defendants. No particulars of fraud are pleaded in the plaint. While arguing this second appeal learned counsel for the appellant tried to contend that it was a mistake on the part of the present appellant to have restricted his claim to a land admeasuring 54 ars and that mistake and/or incorrect 2 admission of fact cannot dis-entitle the plaintiff from succeeding in the present suit. A case of misrepresentation and fraud allegedly played by defendants was the case tried to be made out in the plaint so also before the trial court and the first appellate court where as in the second appeal what was tried to be contended was that it was mistake on the part of the appellant. The appellant cannot be permitted to deviate from pleadings and cannot be permitted to raise new plea altogether. Both the courts below have dismissed the suit. No question of law, much less a substantial question of law, arises for consideration in this second appeal. Hence second appeal is dismissed summarily. At this stage learned counsel for the appellant seeks continuation of ad-interim exparte order. As I have dismissed the second appeal summarily I do not think it appropriate to continue the ex-parte ad-interim order. In the result said prayer stands rejected. In view of disposal of the second appeal civil application No.1636 of 2008 does not survive and the same also stands disposed of. 09.01.2009. 3