( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 92 OF 2003 WITH CIVIL APPLICATION NO. 7138 OF 2004 Mehboob Abdul Khan Pathan – died L.Rs. .. Appellant 1. Ashabee Mehboob Pathan, Age. 75 yrs., Occ. Household, 2. Habib Mehboob Pathan, Age. 50 yrs., Occ. Agri., 3. Kashim Mehboob Pathan, Age. 45 years, Occ. Agri., All R/o. Kurla, Tq. Kandhar, Dist. Nanded. 4. Maidabee Hakim Saheb Pathan, Age. 30 yrs, Occ. Household, R/o. Barar Colony, Sahara Nagar, Aurangabad. Versus 1. Riyasat Khan s/o. Multani Khan, .. Respondents Died through L.Rs. i) Hussain Banu w/o. Dr. Abdul Gani, Sahab (Vaternary Doctor), Age. About 50 yrs., Occ. Household, R/o. Gauspura Mohalla, Latur, Dist. Latur. ( 2 ) ii) Raziya Begum w/o. Abdul Jabbar, Khatib Sahab, (Fruit Seller), Age about 40 yrs., Occ. Household, R/o. H.No.10-19-3-262/50, Mishri Ganj, Mohalla, Hyderabad. (Dismissed as per order dated 23.07.2003) 2. Ameer Khan s/o. Mullani Khan, Died through L.Rs. i) Multani Khan s/o. Ameer Khan, Age about 50 yrs., Occ. Rikshaw Puller, R/o. Mahboobki Mehandi, Hyderabad. (Dismissed as per order dated 23.07.2003) ii) Sikandar Khan s/o. Ameer Khan, Age about 48 years, Occ. Business, R/o. As above. (Dismissed as per order dated 23.07.2003) 3. Rashid Khan s/o. Nawaz Khan, Age. 60 yrs., Occ. Agri., R/o. Kurla at present Phulwal, Tq. Kandhar, Dist. Nanded. 4. Abbas Khan s/o. Nawaz Khan, Age. 55 yrs., Occ. Agri., R/o. Kurla at present Phulwal, Tq. Kandhar, Dist. Nanded. 5. Hussain Khan s/o. Nawaz Khan, Age 50 years, Occ. Business & Agri., R/o. Kurla at present Phulwal, Tq. Kandhar, Dist. Nanded. 6. Khaja s/o. Nawaz Khan, Age. 45 years, Occ. Business & Agri., R/o. Kurla at present Phulwal, Tq. Kandhar, Dist. Nanded. 7. Putlibee w/o. Nawaz Khan, Age. 80 yrs., Occ. Agri., R/o. Kurla, Tq. Kandhar, Dist. Nanded. ( 3 ) 8. Dnyanoba s/o. Namdeo Gangaware, Age.14 years, u/g. Of Namdev s/o. Sopan Gangaware, Age. 38 years, Occ. Agri., R/o. Kurla, Tq. Kandhar, Dist. Nanded. 9. Laxman s/o. Namdeo Gangaware, Age.1 ٦years, u/g. Of Namdev s/o. Sopan Gangaware, Age. 38 years, Occ. Agri., R/o. Kurla, Tq. Kandhar, Dist. Nanded. 10. Mehtab s/o. Akbar, Age. 45 years, Occ. Agri., R/o. Kurla, Tq. Kandhar, Dist. Nanded. Shri B.N. Patil, Advocate for the appellant. Miss M.B. Vaishanv h/f. Sr. Adv. Shri P.V. Mandlik for respondent No. 1(i). Shri M.V. Deshpande, Advocate for respondent Nos. 8 & 9. CORAM : P.R. BORKAR,J. DATED : 15.06.2009 ORAL JUDGMENT :- 1. Heard Adv. Shri B.N. Patil for the appellants, Adv. Shri M.V. Deshpande for respondent Nos. 8 & 9 and Adv. Miss M.B. Vaishnav h/f. Sr. Adv. Shri P.V. Mandlik for respondent No. 1(i). The Second Appeal is filed by ( 4 ) original defendant No.6 being aggrieved by judgment and decree passed by the Joint District Judge, Nanded, in Regular Civil Appeal No.56 of 1998, decided on 31st December, 2001, whereby he modified the judgment and decree for partition and separate possession, passed in Regular Civil Suit No. 35 of 1985, by the learned Civil Judge, Junior Division, Kandhar, on 26.03.1985. 2. It is case of the original plaintiffs who are present respondent Nos. 1 and 2 that they are co-owners of the property. They were sons of Multani Khan, whereas defendant Nos. 1 to 5 were grand sons of Sikandar Khan, who was brothers of Multani Khan. Defendant Nos. 6 to 9 purchased the suit land from defendant Nos. 1 to 4. It is case that alleged sale-deed executed by plaintiff No. 1 Riyasat Khan in favour of defendant Nos. 1 to 4 is forged document and it did not bear his thumb impression. It is also alleged that sale-deed executed by plaintiff No. 2 Amirkhan in favour of defendant is nominal and as a security for loan. It was held that the sale-deed executed by plaintiff No.2 was out and out sale and binding on the plaintiffs, whereas alleged ( 5 ) sale-deed executed by plaintiff No.1 in favour of defendant Nos. 1 to 4 was a forged document. It did not bear thumb impression of plaintiff No.1. The evidence of witness who had compared thumb impression is there and it is accepted. Relying on evidence of the witnesses the sale-deed by plaintiff No.1 in favour of defendant No.2 dated 26.04.1976 is held to be proved. 3. The Trial Court by its order allotted particular properties to particular parties, which was contrary to Section 54 of the C.P.C. and therefore the Appellate Court set aside the directions given in pars 2 and 3 of the order by the Trial Court about alienation of particular piece to particular person. 4. After hearing advocates for both sides, in my opinion, the evidence is properly appreciated and conclusions are based on evidence. They cannot said to be perverse. No substantial question of law arises about said findings of facts. However, in view of the fact that the plaintiffs were residing at Hyderabad for pretty long time prior to actual execution of sale-deed, ( 6 ) equitable relief should have been given to original appellant Mehboob Abdul who was original defendant No.6. He is entitled to equitable relief that the property purchased by the appellant as far as possible to allot to the share of his vendor. 5. With consent of both sides this appeal is admitted on the following substantial question of law:- “Whether the First Appellate Court was right in setting aside all directions in paras 2 & 3 and not giving equitable relief to the appellant regarding the sale-deed obtained?” 6. Since, no other substantial question of law arises and only equitable consideration is required, in my opinion, this appeal can be disposed of with said necessary directions. In the result, the appeal is dismissed, however, direction is given that at the time of partition under Section 54 of C.P.C. concerned authority may consider, to grant equitable relief to the appellant (who was original defendant No.6), to allot as far as possible the land purchased by him to the share of his vendor. The Second Appeal is accordingly disposed ( 7 ) of. Parties to bear their own costs. 7. In view of disposal of Second Appeal, Civil Application No. 7138 of 2004 does not survive. The Civil Application stands disposed of. [P.R. BORKAR,J.] snk/2009/JUN09/sa92.03