( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 469 OF 2009 WITH CIVIL APPLICATION NO. 6853 OF 2009 Namdeo s/o Rambhau Gayake APPELLANT VERSUS Shripati s/o Baliram Gayake and another. RESPONDENTS ..... Mr. Sachin Deshmukh, advocate for the appellant. Mr. S.V. Gangapurwala, advocate for the respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 10th November, 2009] PER COURT : 1. Heard learned counsel for the parties. 2. This second appeal is preferred by original defendants. The respondent is original plaintiff No. 2. He and his father had filed suit (R.C.S. No. 366/1992) for recovery of possession. The suit was dismissed by the trial Court. The first Appellate Court, however, ( 2 ) allowed the appeal preferred by them and decreed the suit. 3. Mr. Deshmukh points out that the pleadings of the plaintiffs purport to show that the suit was filed under section 6 of the Specific Relief Act, 1963 and as such, there could not be remedy of appeal. He would submit that the first Appellate Court had no jurisdiction to entertain the appeal. He further submits that original plaintiff No. 1 Shripati had died during pendency of the first appeal and the appeal had abated, which ought to have been regarded as abatement of the appeal in entirety and, therefore, the first Appellate Court committed the patent error while allowing the appeal. He invited my attention to certain observations in “State of Punjab v. Nathu” (1962 S.C. 89), “Rameshwar Prasad and others v. Shambehari Lal Jagannath and another” (AIR 1963 S.C. 1901), “Annabai Devram Kini and others v. Mithilal Daisangar Singh and others” 2002 (2) Mh.L.J. 507 and “Govind Laxman Jadhav v. Namdeo Balu Jadhav” 2005 (1) Mh.L.J. 8. ( 3 ) 4. What emerges from the pleadings of the plaintiffs is that they asserted ownership rights and claimed possession on basis of such rights. They also, however, asserted that they were dispossessed by the defendants and as such, were claiming restoration of possession under provisions of the Specific Relief Act. The suit was not, however, treated as a summary suit. The trial Court framed issues and tried the same as a regular civil suit. Not only that, the trial Court framed issue No. 1 as follows : “Do plaintiffs prove their title to the suit property ?” 5. It is manifest that the trial Court proceeded on the footing that it was a suit based on title for recovery of possession. The appellants did not insist that it shall be tried as a summary suit under section 6 of the Specific Relief Act. Obviously, it will have to be inferred that the plaintiffs elected the plea of title as a foundation for recovery of possession and, ( 4 ) therefore, the suit was tried as a regular one. In this view of the matter, now it cannot be said that the appeal was not maintainable before the first Appellate Court. 6. So far as abatement of the appeal before the first Appellate Court is concerned, it is pertinent to notice that the appellant No. 1 – Shripati (plaintiff No. 1) was represented by appellant No. 2 Bhimrao (plaintiff No. 2). For, they were the father and son interse. The question of abatement always depends on the question of representation of the estate and continuation of the cause of action in favour of the remaining parties. The appellant No.2, who is the respondent herein, was the eldest son and joint holder of the suit property. Therefore, he could represent the estate notwithstanding death of his father i.e. deceased plaintiff No.1 Shripati. Consequently, there could not be total abatement of the appeal before the first Appellate Court due to absence of application for substitution of the legal representative of the deceased appellant No. 1 in as much as the appellant No. 2 was ( 5 ) the legal heir and successor as well the co-owner. It is also well settled that any one of the co-owner may recover the possession from stranger. Therefore, the cause of action continued to be in favour of the respondent (original appellant No.2 before the first Appellate Court). Hence, the question pertaining to abatement of the appeal before the first Appellate Court cannot be treated as substantial question of law. 7. The defendants asserted the right in respect of the suit land on basis of their purchase from one Nilawati and Saraswati by virtue of sale-deed dated 06-06-1980. The Courts below noticed that such plea was not proved and there was previous litigation in suit bearing R.C.S. No. 409/1977. The litigation was also decided by the first Appellate Court vide R.C.A. No. 276/1983 wherein the title of the plaintiffs in respect of 2 acres 24 gunthas land was confirmed. The contesting defendants also admitted that the plaintiffs had purchased the said 2 acres 24 gunthas out of Survey No. 145 and, therefore, there is no escape from conclusion that the plaintiffs could have sought ( 6 ) recovery of possession on basis of their title. 8. The findings of fact cannot be regarded as perverse. The second appeal is outside the pale of section 100 of the Civil Procedure Code. In view of “Arumugham (dead by L.Rs.) and others v. Sundrambal and another” (AIR 1999 S.C. 2216) and “Kashmir Sing v. Harnam Sing and another” (AIR 2008 S.C. 1749), as there is no substantial question of law involved in this appeal, the appeal is not maintainable. Consequently, the second appeal fails and is dismissed. No costs. 9. In view of dismissal of the second appeal, the civil application No. 6853/2009 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa469-09