1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.128 OF 2009 Ramchandra Namdeo Aabnawe and other 2 APPELLANTS (Ori.Plaintiff) VERSUS Vijay Marutrao Aabnawe and another RESPONDENTS (Ori.def.no.1 & 6) Mr.Mukul Kulkarni, learned counsel for appellants. Mr.S.S.Deshmukh, learned counsel for respondent no.1 Mr.C.K.Shinde, learned counsel for respondent no.2 (CORAM : A.V.POTDAR, J.) DATE : 26/03/2010 PER COURT : 1. By the present AO, the appellants who are original plaintiffs in Spl.C.S.No.7/2009 on the file of Civil Judge, S.D.Kopargaon, have assailed the order passed below Exh.5 in the said suit. The said suit was filed by the plaintiffs/appellants for declaration that the sale deed executed by deceased Sarubai Namdeo in favour of respondents, who are arrayed as defendant no.1 and 6 in the suit before the Trial Court, which application was rejected by the Trial Court vide its judgment and order dated 17/07/2009, wherein it was prayed that the properties alienated in favour of the respondents by the Sarubai 2 under the sale deed dated 11/01/2007 and 13/01/2007 not to be alienated to the third party or not to create third party interest during the pendancy of Special Civil suit. 2. Such of the facts which are necessary while considering the submissions across the bar by both the sides in support of their rival contentions. It appears that the present appellants have filed Spl.C.S.No.7/2009 against the present respondents and 34 other persons for declaration that the sale deed executed by deceased Sarubai in favour of these respondents about the property mentioned in plaint para no.1 situated at village Jeur Kumbhari, Tal.Kopargaon, which she has purchased under the registered sale deed dated 27/06/1975 from the original owner of the property, but she was put in possession of that property under the family partition, which took place on 23/01/1960 during the lifetime of the father of deceased Sarubai, these appellants and some of the defendants and their predecessor in title. According to the appellants/plaintiffs, there is recital in the registered partition deed dated 23/01/1960 that this property was given to Sarubai to enjoy during the lifetime with a rider not to create any charge on this property by execution of any documents. It appears that after Sarubai was put in possession of that property as alleged, somewhere in the year 1968, the original landlord lease out this property to Sarubai for the period of 12 years which in the natural course, come to an end in the year 1980 but before that period come to an end, in the month of June 1975 sale deed was executed in favour of Sarubai by the original landlord and 3 in turn, the property was sold by deceased Sarubai in favour of these respondents. The appeal memo shows that other than these respondents, the other 34 persons who were alleged as defendants in the suit, were not joined as respondents in the appeal as according to the appellants, no relief is claimed against them in the application for temporary injunction. 3. During the course of submissions across the bar, emphasizes were put by the counsel for appellants mainly on 3 points that the property which was sold by Sarubai was given to her in partition, but with the life interest only, hence she is not the absolute owner of the property. Even though Sarubai has purchased the property from the original owner under the registered sale deed in the month of June 1975, but the funds provided for the purchase of this property were from the joint family funds, hence even though the property was purchased under the said sale deed by Sarubai from the original owner, it is a property of joint family and not the absolute property of deceased Sarubai. The property was a tenanted property and hence Sarubai alone has no absolute right to claim the tenancy of that property and to purchase the tenanted property from the original owner. As these appellants and other 34 tenants have share and interest in the property, the injunction order to be passed not to alienate the property during the pendancy of the suit before the Trial Court. 4. As against this, according to the respondents, even though the 4 property was given in partition to deceased Sarubai, but by virtue of independent agreement of lease by the original owner in favour of Sarubai, the recitals in that partition deed loose the effect that the property was given for the life interest of Sarubai and later on come to an end as the property was purchased under the registered sale deed by deceased Sarubai from the original owner after obtaining requisite permission under the tenancy laws which recital find place in the registered sale deed between the original owner and Sarubai and lastly and most importantly Sarubai expired in the year 2008. During the lifetime of Sarubai, even though these appellants and other tenants who are not joined as respondents, they are well aware by the alienation of the property deliberately during the lifetime of Sarubai, but this alienation was not challenged. 5. Considering these submissions across the bar, perused the order passed by the learned lower court which is impugned in this appeal as it is specifically observed that at the time of alienation of the property by deceased Sarubai in favour of these respondents, she was the owner of the property and these appellants as well as other defendants have no right over that property. The most important observations in the impugned order that even though the contention is raised by these appellants in the plaint, as there is specific pleading that by taking dis-advantage of the mental disorder of Sarubai, without any consideration, these respondents cheated her and got executed the sale deed in their favour, which was negatived because of the statement of Sarubai recorded during the proceeding 5 of permission to alienate the tenanted property, which find reference in the sale deed. When Sarubai, in her statement recorded before the revenue authorities/about the enquiry of mutation proceeding, have not raised the issue that she has not received the consideration, then now these appellants can not raise the issue that the sale deed is without any consideration. Apart from it, even though there is embargo on the title of Sarubai as she has initially received the property under partition deed in the year 1960, but the effect of that embargo also lost the effect after the original owner lease out this property to her independently in the year 1968 and later on sold the property to deceased Sarubai in the year 1975. Even though hue and cry is made before this Court that the funds were provided for purchase of the property from joint family funds, but to support this contention, nothing was before the Trial Court or before this Court. On the contrary, the recitals of the sale deed of the year 1975 clearly indicates that as the Sarubai was the tenant of the property, the property was sold to her by the original owner. It is to be noted that this sale is not due to the effect of the tenancy proceedings under the B.T. And A.L. Act, but a private transaction which can be noticed as in the partition deed of the year 1960, even though this property was given to the share of deceased Sarubai, there is no reference in that partition deed that this property is in possession of the family of appellants and others as the tenanted property. In view of this, all the contentions raised before this Court is the futile effort on the part of appellants to create hurdle to enjoy the property as an absolute owner by these respondents. In the premise, considering the 6 observations of the Trial Court, this Court need not find that the order is perverse and required any interference at the hands of this Court. AO sans any merit, hence rejected. (A.V.POTDAR, J.) khs/MAR 2010/ao128-09