1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 418 OF 2007 WITH CIVIL APPLICATION NO.61 OF 2006 Gulshan Farid Nadaf : Appellant versus Kabir Hussain Nadaf since deceased by his legal heirs Mahbub Yusuf Nadaf and others. : Respondents. Ms.Manjiri Parasnis i/by Shri Girish S. Godbole for the Appellant. Shri.Amit Borkar for Respndent Nos.1A and 1B. CORAM : R.M.SAVANT, J. DATED : September 02, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and Decree dated 26/10/2004 passed by the learned 8th Ad-hoc Additional District Judge, Kolhapur by which the Judgment and Decree dated 12/09/1994 passed by the learned Joint Civil Judge, 2 Junior Division, Jaysingpur in Regular Civil Suit No.191 of 1989 came to be confirmed. 2. There are concurrent finding of facts as regards the maintainability of the said suit. Both the Courts below have held that the said suit was maintainable in view of the Order XXIII Rule 1 of the Code of Civil Procedure. Both the Courts below have also held that the Plaintiff was entitled to the suit property on account of the fact that the predecessor in title of the Plaintiffs i.e. Balabai - the wife of Yakub was entitled to ½ share in the suit property. Both the Courts below have also rejected the plea of adverse possession as there was no material to support the plea taken by the Appellant/Defendant in respect of the suit property. 3. It is sought to be contended on behalf of the Appellant/Defendant that in view of the counter claim filed by the Plaintiffs in Regular Civil Suit No.146 of 1986 for the same relief of possession, the present suit being Regular Civil Suit No.191 of 1989 was not maintainable. It is also sought to be contended on behalf of the Appellant/Defendant that the Respondents/Plaintiffs had not 3 produced any material to show that leave was granted by the trial Court to file a fresh suit. It is further sought to be contended that in view of the decision in Regular Civil Appeal No.412 of 1967 wherein Balabai – the predecessor in title of the Respondents/Plaintiffs was entitled to only 1/8th share in the suit property the alienation of Balabai in favour of Miraso Pinjari and thereafter alienation by Miraso Pinjari in favour of the Respondents/Plaintiffs was unsustainable. 4. Per contra, it is sought to be contended by the learned advocate for the Respondents/Plaintiffs that the averment in the plaint that the counter claim in the earlier Regular Civil Suit No.146 of 1986 had been withdrawn with liberty to file a fresh suit, has not been controverted by the Appellant/Defendant in her written statement filed in the latest suit and it has been merely stated that the claim made in the present suit was a false claim. It is further sought to be contended on behalf of the Respondents/Plaintiffs that in the light of the pleadings wherein there is no denial by the Appellant/Defendant to the said position, no issue was framed by the trial Court in that regard. It is further contended that in fact the maintainability of the present 4 suit has been admitted by the Appellant/Defendant. In so far as the contention of the Respondents/Plaintiffs as regards Balabai's 1/8th share is concerned, it is contended by the learned advocate for the Respondents/Plaintiffs that the said adjudication in the Regular Civil Appeal No.412 of 1967 was in respect of the agricultural lands. The present dispute concerns the house properties wherein, admittedly as per the Appellant/Defendant's own admission, there was a partition between Ismail and Yakub and, therefore Yakub was entitled to ½ share and on the death of Yakub, Balabai was entitled to his ½ share being his wife. In any event, it is contended on behalf of the Respondents/Plaintiffs that the Defendant being a tress passer in the context of the partition that has taken place, the suit by co-owner is maintainable and for the said purpose, relies upon the judgment of the Apex Court reported in (2004) 3 SCC 178 in the matter of India Umbrella Manufacturing Co. and others v/s. Bhagabandei Agarwalla (dead) by Lrs. Savitri Agarwalla (Smt) and others and the judgment of this Court reported in 1987 Mh.L.J. 1052 in the matter of Gautam Ramanlal Diwan and another vs Madhukar Raghunath Kalewar and 5 others, wherein it has been held that the suit filed by a co-owner against a tress passer is held maintainable. 5. As indicated above, both the Courts below have concurrently held against the Appellant/Defendant and in favour of the Respondents/Plaintiffs, the challenge raised in the above Second Appeal does not involve any substantial question of law. The Appeal is accordingly dismissed. 6. In view of the dismissal of the Second Appeal, the Civil Application No.61 of 2006 does not survive and the same is disposed of as such. Ad-interim order which is in operation till today is continued for a period of six weeks from date. [R.M.SAVANT, J]