1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL ST.NO.19447 OF 2002 1 Ravindra s/o Uttamrao Kulkarni, age: 32 years, Occ: R/o Mudalwadi, Tq. Paithan, District Aurangabad. 2 Rajendra s/o Uttamrao, age: 30 years, R/o Mudalwadi, Tq.Paithan, Dist.Aurangabad. 3 Mahendra s/o Uttamrao, age: 26 years, R/o Mudalwadi, Tq.Paithan, Dist. Aurangabad. Appellant Versus 1 Sow.Kantabai w/o Prabhakarrao Deshpande, age: 50 years, Occ: Household, R/o Bhaygaon, Taluka Shevgaon, District Ahmednagar. 2 Bakultabai w/o Dattatraya, age: 89 years, Occ: Household, R/o village Mudalwadi, Tq.Paithan, District Aurangabad. 3 Rajani w/o Prabhakarrao, age: 47 years, Occ: Household, R/o Gondi, Tal. Ambad, District Jalna (d/o Dattatraya) 4 Chaya w/o Ambadasrao, age: 47 years, Occ: Household, R/o Godmalgaon, Tq. Georai, 2 District Bhir (D/o Uttamrao) 5 Shobha w/o Popatrao, age: 37 years, Occ: Household, R/o Godmalgaon, Tq.Georai, District Bhir (D/o Uttamrao) 6 Prabhavatibai w/o Uttamrao, age: 57 years, Occ: Agril., R/o Village Mudalwadi, Tq. Paithan, District Aurangabad. 7 Nirmala d/o Uttamrao, age: 30 years, Occ: Household, R/o Mudalwadi, Tq. Paithan, District Aurangabad. 8 Mohd. Karim s/o Mohd. Kasam, age: 50 years, Occ: Business, R/o Malegaon, District Nasik. 9 Asmathullah s/o Amanullah Pathan, age: 22 years, Occ: Business, R/o Vihamandva, Tal.Paithan, District Aurangabad. 10 Asefkhan s/o Yusufkhan Pathan, age: 33 years, Occ: Business, R/o Paithan. 11 Fayyaz Khan s/o Dilawar Khan, age: 36 years, Occ: Agril., R/o Andheri, Bombay. Respondents Mr.M.R.Challani, advocate for appellants. 3 CORAM: R.M.BORDE, J. DATE : 29th July, 2009. ORAL ORDER: 1 Heard Shri Challalni, learned Counsel for appellants. 2 Appellants-original plaintiffs are raising exception to the concurrent judgments delivered by both the Courts below. 3 Suit was presented by the plaintiffs claiming declaration, perpetual injunction and restoration of possession of the suit property. It is the contention of plaintiffs that one Madhavrao was the original owner of suit land. He had two sons by name Shriniwas and Dattatraya. Shriniwas had a daughter by name Kantabai, who is imipleaded as defendant no.1. Dattatraya died and he was survived by two sons and one daughter. One of the son Uttam had three sons and those are plaintiffs no.1 to 3. He had also three daughters, those daughters are impleaded as defendants No.4, 5 & 7. According to the plaintiffs, Shriniwas, during his life time, was staying with Digambar and he, out of love and affection, had executed will deed. Digambar was also holding power of attorney on behalf of Shriniwas as regards the suit property. Digambar executed sale deed in respect of three lands on behalf of Shriniwas in favour of plaintiffs on 24.08.1970. At the time of purchase of property, plaintiffs were minors. It further transpires that daughter of Shriniwas, namely Kantabai filed a suit claiming partition and separate possession against plaintiffs. Plaintiffs were represented by their mother defendant no.6-Prabhawatibai. Suit presented by Kantabai came to be decreed and she has been allotted share in the property held by her father Shriniwas. Aggrieved by judgment and decree passed by the trial Court, Prabhavatibai, acting as guardian 4 of the minors, preferred appeal. However, appeal came to be withdrawn. 4 According to the plaintiffs, withdrawal of the appeal by guardian is not in the interest of minors. There is no compliance of Order XXIII Rule 1 of Civil Procedure Code while withdrawing the appeal. It is also contended that interest of the minors has not been taken care of by their mother and the Court has also not ensured compliance of Rule 1 of Order XXIII. 5 Defendants appeared and resisted the suit by filing written statement. According to contesting defendant-Kantabai, interest of minors was taken care of by their mother Prabhavati. It is contended that during continuance of earlier suit i.e. R.C.S. No.126/70, an application was presented by defendant no.1 Kantabai for appointing Prabhavati as guardian of minors. Considering contentions of all concerned parties, trial Court allowed the application and appointed Prabhavati as guardian to represent minors. According to defendants, suit was hotly contested, however, after proper contest, suit came to be decreed. At the time of withdrawing appeal, interest of minors was also taken care of. There was an affidavit of Prabhavati, guardian of minors, placed on record and after being satisfied, the Court has permitted withdrawal of appeal. According to defendants, in fact entitlement of the plaintiffs on the basis of sale deed got executed from Digambar on 24.08.1970 is questionable. Digambar had no entitlement to execute sale deed in favour of plaintiffs. The claim raised by plaintiffs that they were put in possession on the basis of sale and were later on dispossessed in execution of decree in R.C.S. No. 5 126/1970 has been denied by the defendants. 6 The trial Court, after considering evidence led by the parties, came to the conclusion that the plaintiffs have not substantiated their contentions and dismissed the suit. Aggrieved by the judgment and decree passed by the trial Court, plaintiffs preferred Regular Civil Appeal No.206/88, which came to be heard and disposed of by II Ad hoc Additional District Judge, Aurangabad, who was pleased to dismiss the same on 24.07.2002. During continuance of appeal, it transpires that the property was alienated by defendant no.1 in favour of defendants no.8 to 10, who were impleaded as parties to the appeal. After taking into consideration contentions of all the contesting parties, the appellate Court was pleased to dismiss the appeal. 7 After presentation of Second Appeal, plaintiffs did not take proper steps for serving Respondents No.2, 3, 4, 5 and purchasers - Respondents No.8 to 11. As such, appeal came to be dismissed against those Respondents. Admittedly, possession has been transferred in favour of purchasers who were made party during continuance of the appeal. The First Appeal against purchasers has been dismissed, so also instant Second Appeal is also dismissed against purchasers. The relief claimed by the plaintiffs in respect of putting them in possession over the property cannot be granted in the absence of purchasers. The purchasers were in fact impleaded as parties during continuance of the first appeal, however, appeal came to be dismissed, so also Second Appeal, as against them, is dismissed. In their absence, decree for possession cannot be granted. Admittedly, plaintiffs are not in possession of the property. As 6 such, relief in respect of perpetual injunction, also cannot be granted in favour of them. 8 Apart from the fact that relief claimed by plaintiffs is not capable of being granted against defendants no.8 to 11, both the Courts below have recorded a concurrent finding that the plaintiffs have failed to establish that they were put in possession in pursuant to the sale deed executed by Digambar on 24.08.1970 and were later on dispossessed at the instance of defendant no.1. Thus, both the Courts below have recorded a finding of fact that the plaintiffs have failed to prove their case in respect of possession over the property in pursuance to the sale deed and later on dispossession of the plaintiffs at the instance of defendant no.1. The findings of facts recorded by Courts below, in that regard, cannot be interfered while dealing with Second Appeal. 9 In this view of the matter, appeal presented by appellants cannot be entertained and is liable to be dismissed. 10 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/satst1944702 7 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.5705 OF 2007 WITH CIVIL APPLICATION ST.NO.21896 OF 2005 IN SECOND APPEAL ST.NO.19447 OF 2002 Ravindra s/o Uttamrao Kulkarni & others Applicants Versus Sow.Kantabai w/o Prabhakarrao Deshpande and others Respondents Mr.M.R.Challani, advocate for applicants. CORAM: R.M.BORDE, J. DATE : 29th July, 2009. P.C.: 1 As the appellants have failed to remove office objections, the Additional Registrar, by order dated 23.07.2003, has refused registration of the appeal. Instant applications are filed for setting aside Additional Registrar’s order as well as for condonation of delay of 852 days occurred in preferring application for setting aside Additional Registrar’s order. 2 Heard Shri Challani, learned Counsel for applicants. 3 For the reasons stated in the applications, applications are allowed. Delay of 852 days occurred in preferring application for setting aside Additional Registrar’s order is condoned. Additional Registrar’s order dated 23.07.2003, refusing registration of the appeal, is set aside. (R.M.BORDE) JUDGE adb/sast1944702 *******