1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 311 OF 1988 Mahamad Yunus Ansari, ) Age 55 yrs, Occu: Service. ) R/o. At: Plot Ns. 1 and 2, Post Office ) Building, Ghorpadi, Gaon, Pune. ).. Appellant (Org. Plff.) Versus Narhari Balkrishna Kavade ) Age 76 yrs, occu: Agriculture ) R/o at: S.No.66, Ghorpari Gaon, ) Dobadwadi, Pune. ) since deceased by his heirs: ) 1. Shankar Narhari Kavade ) Age 53 ys, occu: Agri. ) R/O at: 66, Ghorpari Gaon, ) Pune. ) The Power of Attorney Holder ) of Appellant Nos. 2 to 10. ) 2. Ramchandra Narhari Kavade ) 2 Age 50 yrs, occu: Agri. ) R/o. At: 66, Ghorpari Gaon, ) Pune. ) 3. Shivaji Narhari Kavade ) Age 43 yrs, occu: Agri. ) R/o. 66 Ghorpari Gaon, ) Pune. ) 4. Tanaji Narhari Kavade ) Age 49 yrs, occu; Agri. ) R/o at: 66 Ghorpari Gaon, ) Pune. ) 5. Suresh Narhari Kavade ) Age 34 yrs, Occu: Agri. ) R/o. At 66, Ghorpari Gaon, ) Pune. ) 6. Anusaya Narhari Kavade ) Age 73 yrs, occu: Agri. ) R/o. At: 66 Ghorpari Gaon, ) Pune. 7. Sou. Champabai Tukaram Kadam) Age: 56 yrs: occu: Household ) R/o at: 455, Somwar Peth, ) Pune. ) 8. Sou. Sulochana Kashinath Gaikwad Age: 46 yrs, occu: Household, ) R/o. At : 60/61, OldShukrawar ) Peth, Pune. ) 9. Sou. Shakuntala Narayan Thorat Age: 41 yrs, occu: Household, ) 3 R/o. 1013, Nana Peth, Pune. ) 10. Sou. Sarubai Kashinath Gaikwad) Age 31 yrs, occu: Household, ) R/o. At: 60/61, Old Shukrawar ) Peth, Pune. ) 11. M/s. Kumar and Company ) By its proprietor : ) Kesarimal Himmamal, ) since deceased by his heirs ) and legal represenaties: ) 11A) Shri Vimal Kesarimal ) 11B) Shri Kewal Kesarimal ) 11C) Shri Inder Kesarimal ) 11D) Lalit Kesarimal ) All residing at 783, ) Bhavani peth, Opp. Nishat ) Talkies, Pune 411 042. ) .. Respondents (Org.Defendants) 4 Mr. A.N.Mulla, Advocate, for the appellant. Mr. N.R.Bubna,Advocate, i/b. Mr. R.S.Apte,Advocate for the respondent Nos.3 to 5, 9 and 10. CORAM: J.H.BHATIA,J. DATE : 24th August, 2009. P.C. 1. To state in brief, the original defendant no.1 – Narhari Balkrishna Kavade was the owner of certain land situate at Pune. On 18.2.1968, a development agreement had taken place between said Narhari Kavade and respondent No.11 – M/s. Kumar and Company under which the respondent No.11 was to make some construction on the land and is allowed to let out the rooms on rent. As per the agreement, he was to give one room after construction to Narhai Kavade and was also to pay 20% of the total rent collected from the tenants. Narhari Kavade had filed Civil Suit No.2339 of 1978 in the Court of Small Causes at Pune for possession of one room and for recovery of his share. The suit was decreed. The appeal filed by the respondent no.11 – M/s. Kumar & Co. was dismissed. Even Writ Petition filed by respondent no.11 came to be 5 dismissed. Thus, the decree passed in Civil Suit No.2339 of 1978 had become final. That decree was put to execution by the decree-holder – Narhari Kavade and, according to him, on 4.11.1982, the decree was actually executed. The present appellant, who was one of the tenants inducted by respondent No.11, was in occupation of two rooms at that time. Possession of one room was allegedly taken from him by executing that decree. The present appellant filed Regular Civil Suit no.2282 of 1982 for perpetual injunction contending that his possession was threatened due to the said decree. On the other hand, said Narhari Kavade filed Regular Civil Suit No. 2321 of 1982 contending that after execution of the decree and after he had taken possession of the room, the present appellant had broken open the door and had taken possession during the following night and thus he was in illegal possession. He claimed decree for possession. The suit filed by the present appellant for injunction was decreed and the suit filed by the respondent No.1 Narhari Kavade for possession was dismissed. In view of this, Narhari Kavade filed Regular Civil Appeal No.643 of 1986 against dismissal of his own suit and he filed Regular Civil Appeal No.642 of 1986 against the decree passed in favour of the present appellant. During the pendecy of the appeal, Narhari Kavade had died and his L.Rs. were brought on record. Both these appeals were allowed by the District Court and, therefore,the present appellant filed the present Appeals, being Second Appeal No.311 of 1988 6 in the suit filed by him and Second Appeal No.354 of 1988 in the suit filed by respondent Narhari Kavade. 2. Thus, there is a decree for possession in favour of the L.rs. of Narhari Kavade and they are respondent Nos. 1 to 10 in the present Appeal. 3. It is material to note that the Second Appeal No.354 of 1988, which was against the decree for possession in favour of respondent nos. 1 to 10, came to be dismissed on 30.8.2004 on the ground that the Appeal as against respondent Nos. 1, 6, 7 and 8 was already dismissed as per the conditional order dated 7.2.2004 and the appeal against the remaining respondents could not proceed. 4. Almost similar situation has arisen in the present Appeal. The record reveals that respondent Nos. 1, 2, 6, 7 and 8 were not served and as per the order dated 18.3.2008, the appellant was granted time upto 28th April,2008 to serve the said respondent nos. 1, 2, 6 to 8 and it was directed that if the affidavit of service is not field by that date, the Appeal would stand dismissed for non- prosecution against the unserved respondents. The result is that the present Appeal against five respondents has already been dismissed as per the Additional Registrar’s order dated 18th March, 2008 because respondent nos.1, 2 6, 7 and 8 7 were not served. In view of this, the judgment and decree dismissing the suit of the present appellant has become final against those five respondents. Even if the Appeal is allowed against the remaining respondents and the suit is decreed, the decree will be inconsistent with the dismissal of the suit against the remaining four respondents. Not only this, such a decree would be inconsistent with the decree of possession which has already become final in favour of the respondent Nos. 1 to 11. In view of these circumstances, the present Appeal cannot survive. Therefore, it also stands dismissed. 5. As the Appeal itself is dismissed, C.A. No.2518/1988 and C.A.No. 1078 of 2005 (in S.A.No.354/1988) do not survive and stand rejected. (J.H.BHATIA,J.)