1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 1 OF 2010 Vishwambhar Dayanand Swami, R/o. Chakur, Dist. Latur. ....Appellant. Versus Mahadev Dayanand Swami, R/o. Chakur, Dist. Latur & others ....Respondents. Shri. D.R. Bhadekar , Advocate for the appellant. Shri. B.R. Kedar, Advocate for respondent No. 1. Shri. H.V. Tungar, Advocate for respondent No. 5. Dismissed against respondent Nos. 2 and 3 as per Court's Order dated 6.7.2009. CORAM : R.M. BORDE, J. DATE : 26th February, 2010 ORAL ORDER : 1. This is an appeal by the original plaintiff raising exception to the judgment and order passed by the Additional District Judge, Latur on 20th September 1999, rejecting the application tendered by the original plaintiff/appellant before the first appellate Court requesting for condonation of delay of 5-6 months occurred in presenting the first 2 appeal. 2. The plaintiff instituted a suit bearing Regular Civil Suit No. 291/1988, claiming relief in respect of the partition and possession of the properties, so also a decree of perpetual injunction and declaration. The plaintiff claimed relief in respect of the partition of agricultural property as well as the house property. The claim raised by the plaintiff in respect of the house property was considered by the trial Court and he was held entitled for 1/5th share in the residential property, whereas the claim by the plaintiff for partition of agricultural property is concerned, the same came to be rejected. As such, the plaintiff was required to file appeal before the first appellate Court. As stated above, the application seeking condonation of delay presented by the plaintiff has been turned down by the first appellate Court, as such the plaintiff has approached this Court by presenting the instant second appeal. 3. At the time of hearing of the appeal on earlier occasion, this Court directed issuance of notices to respondents. As such, the respondent Nos. 1 and 5 have appeared before this Court. Rest of the parties i.e. the names of the respondent No. 2/original defendant No. 2 Dhondiram and respondent No. 3/original defendant No. 3 Shankar stand deleted and the appeal is dismissed against them for want of prosecution in view of the order passed by this Court on 6.7.2009. So far as respondent No. 4/ original defendant No. 4 is concerned, she is already dead and her name 3 stands deleted in view of order passed by this Court on 25.7.1995. Thus, there are only two respondents i.e. original defendant Nos. 1 and 5 before the Court. Normally, this Court takes liberal view while deciding the petition in respect of condonation of delay. But, however, in the instant matter, the objection is raised by the respondent on the ground of entertainability of the appeal, in the absence of the other shareholders i.e. defendant Nos. 2 and 3. It is contended that the decree passed by the trial Court in respect of dismissal of the suit as regards the agricultural property stands confirmed by virtue of rejection of application tendered by the plaintiff before the first appellate Court, seeking condonation of delay. In the absence of original defendant Nos. 2 and 3, no decree can be passed directing the partition of the joint family properties. In view of dismissal of the suit as against defendant Nos. 2 and 3, it would not be permissible to pass a decree in favour of the plaintiff and against the other defendants as the same will give rise to conflicting decrees. The counsel for the respondents placed reliance on the judgment reported in 2008 (6) ALL MR 804 Equbalbegum w/o. Sk. Ahmed & Ors. Vs. Abdul Rahim Fateh Mohammad & others, wherein it has been recorded that :- "14. Mr.C.R.Deshpande seeks to rely on "Badni (dead) by L.Rs. and others etc. V/s. Siri Chand (dead) by LRs and others" (AIR 1999 SC 1077). Reiterating the tests stated in Nathu Ram’s case (AIR 1962 SC 89) the Apex Court held that the appeal would be liable to be dismissed where : "a) When the success of the appeal may lead to the Court’s coming to a decision which would be 4 in conflict with the decision between the appellant and the deceased respondent and, therefore, which would lead to the Court’s passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court, and c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed." 15. Mr.C.R.Deshpande also seeks to rely on "Shri Bakshish Singh (dead) by LRs v/s Arjan Singh and others" (1996 (3) Supreme 118)," Matindu Prakash (Deceased) by LRs V/s Bachan Singh and others" (AIR 1977 SC 2029), "Sri Chand and others V/s M/s Jagdish Pershad Kishan Chand and others" (AIR 1966 SC 1427), "Zilla Singh V.Chandgi" (1991 SC 263), and "Deoram Ana Patil and Sonu Puna Patil" (1974 Mh.L.J.9). 16. If the above referred litmus test is applied, one would see that if the appeal succeeds then it would lead to conflicting decision with the finality of decision in favour of deceased respondent No.3-Vajirbi. It need not be emphasised that her share has been crystallized and the decision in her favour has become final due to abatement of the appeal against her. So, if the appeal will be allowed then such decision will run counter to the finality attained in respect of the decision of the First Appellate Court in her favour. Passing of the decree in favour of the appellants will be contradictory to the decree, which has become final with respect to the same subject matter between them and deceased respondent No.3-Vajirbi. Considering the nature of final decree, I am of the opinion that the entire appeal would abate due to abatement of the same as against the respondent No.3-Vajirbi (original defendant No.18). For this reason too the Second Appeal must fail. " 5 4. In this view of the matter, I am of the opinion that the appeal by the plaintiff before the first appellate Court cannot be proceeded in the absence of the original defendant Nos. 2 and 3, who are co-parceners in the family and the decree in respect of the dismissal of the suit in respect of the agricultural properties stands confirmed against them. In this view of the matter, no interference is called for in the instant second appeal. The second appeal stands dismissed. [ R.M. BORDE, J. ] ssc/sa1.10