1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1718 OF 2005 1. Aminabegum W/o Mohd. Hamiduddin, and others .. .. Appellants Versus 1. Shaikh Pasha S/o Sk. Hussain, and others .. .. Respondents Shri G. D. Kale, Advocate for the Appellants. Shri P. G. Godhamgaonkar, Advocate for the Respondents No. 1 to 3. The respondents No. 4 to 7 served - absent. CORAM : N. D. DESHPANDE, J. DATE : 30TH NOVEMBER, 2009. ORAL ORDER : 1. Heard Shri Kale, learned counsel for the appellants. He has filed an application for stay of operation of the judgment and order passed by IInd Ad-hoc Additional District Judge, Nanded dated 22.08.2008. The same is impugned in this second appeal for admission. I have also heard Shri Godhamgaonkar, learned counsel for the respondents No. 1 to 3, who is opposing the application for stay, so also admission of the appeal. I have gone through the impugned judgment and heard submissions of 2 Shri Kale, learned counsel for the appellants. The application for stay will certainly depend on merits of appeal for admission and as such, the arguments were advanced on both the points. 2. The main contention of the appellant is that, he was given liberty to file appeal and his Misc. Civil Application came to be allowed. Notices were directed to the opposite party. They appeared and the learned First Appellate Court dismissed the appeal observing that, the same is not maintainable. Shri Kale, learned counsel for the appellants took objection to this observation saying that once the Misc. Civil Application is allowed, the First Appellate Court ought not to have dismissed the appeal on the point of maintainability. Even on merits also he made submissions that, he had filed caveat in the Trial Court, when he had apprehension that there would be collusive suit being filed between the respondents No. 1 to 3 on one side as plaintiffs against the respondents No. 4 to 9 as the defendants. His apprehension came to be true and suit was filed on 09.08.2004 by the said plaintiffs/respondents, which came to be disposed of by the Trial Court by compromise decree on 07.09.2004 within a period of one month and parties succeeded in getting compromise decree in respect of suit property, where the present appellants are claiming their rights. Therefore, the appellants were constrained to file appeal challenging the said compromise decree as fraudulently obtained. Same is illegal and not binding as it is collusive. 3 3. On this point the First Appellate Court gave its finding not only on the point of maintainability, but discussed the merit aspects. I have also heard Shri Godhamgaonkar, learned counsel for the respondents No. 1 to 3, who pointed out that there is no illegality or perversity in the findings recorded by the First Appellate Court below. I have gone through the paragraph 13 and 14 of the impugned judgment of the First Appellate Court, so also the facts discussed at the outset of the judgment. It appears that appellants have been given full fledged hearing and understood their grievance and it was also suggested that for alleged cause of action they should have filed a civil suit and not challenging the compromise decree in appeal. 4. Thus it is seen that appellants are aggrieved by the said compromise decree dated 07.09.2004 passed by the learned Trial Court in Regular Civil Suit No. 380/2004 between respondents No. 1 to 3 on one hand as plaintiffs versus respondents No. 4 to 9 as defendants. Now it is also informed that the suit property is of Inam land and the Collector is competent authority to deal with the nature and right of the parties referring to the subject matter. At the stage of admission of second appeal, the dispute is narrow whether it is raising any substantial question of law, while rejecting the appeal by the First Appellate Court below. No case is made out to find fault with the impugned judgment and order passed by the First Appellate Court below. 4 5. Admittedly, a compromise decree between the said parties cannot be challenged by the appellants in an appeal. Ordinarily compromise decree between the parties to such suit, no appeal lie except on certain grounds of frauds, etc. The appellants are the third party and if they are interested and affected thereby it is to be challenged by separate suit in accordance with law. Moreover, considering the nature of the property as have been rightly pointed out by Shri Godhamgaonkar, it is the Collector, to entertain such disputes. It is left to the parties to choose. No grievance can be heard and entertained in the second appeal, when all facts are admitted as regards to the procedure and proceeding on record. In that view of the matter, the second appeal stands dismissed summarily at the stage of admission and disposed of accordingly. [ N. D. DESHPANDE, J.] bsb/Nov.09