1 S.A.No.184.89 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.184 OF 1989 1] Vasant S/0 Dagdu Shinde, R/o Nahur, Ta. Shrirampur, District Ahmadnagar. 2] Dagdu S/o Appaji Shinde,R/o Nahur, Ta. Shrirampur, District Ahmadnagar. APPELLANTS V E R S U S Somnath Baburao Shinde, Deceased Through his legal heirs. 1-A] Smt. Lilabai Somnath Shinde, Age 55 years, occupation household R/o C/o Prataprao Mohan Turkane at and post Pimpalwadi, Tq. Kopargaon,District Ahmednagar. 1-B] Sheetal Somnath Shinde,Age 21 years and minor 1-C] Madhuri Somnath Shinde, Age 19 years Minor. 1-D] Amol Somnath Shinde, Age 16 years Minor Respondent Nos 1-B to 1-D minor Through their natural guardian Smt. Lilabai Somnath Shinde Respondent No.1 RESPONDENT WITH CIVIL APPLICATION NO. 1469 OF 1989 IN SECOND APPEAL NO. 184 OF 1989 2 S.A.No.184.89 1] Vasant S/0 Dagdu Shinde, R/o Nahur, Ta. Shrirampur, District Ahmadnagar, and other APPLCANTS V E R S U S Somnath Baburao Shinde, Deceased Through his legal heirs. RESPONDENT ... Mr.R.N.Dhorde,Advocate for Appellants/Applicants Mr.V.D.Sapkal, Advocate with Mr.Y.S.Chodhari Advocate for respondents ... CORAM : A.V. NIRGUDE, J. DATED : 24TH FEBRUARY, 2010 ORAL JUDGMENT : 1] This second appeal challenges the Judgment and decree passed in Regular Civil Appeal No. 01 of 1986. . The facts leading to this litigation are as under- 2] The appellants were the original defendants. The respondent was original plaintiff. 3] The respondent sued the appellants, on following cause of action. 3 S.A.No.184.89 He said, he, his mother, his sister formed a joint Hindu family. He said, during his father's life time, they had joint family consisting of his father, he himself, his mother and sister. He said that, this joint family of his father owned certain property, which is Gut NO.125 of village Babhulgaon, Ta. Vaijapur, District Aurangabad. He said, in 1978 he attained majority and when he tried to start cultivation of the land of the joint family, the appellants obstructed it, and they asserted that they had purchased the land from his father. The respondent alleged that the alienation made by his father was not binding on him, because it was not for legal necessity. He, therefore, filed this suit for declaration that the alienation of the suit land was not binding on him and for recovery of possession of the land. . Obviously, the appellants took defence of legal necessity. Besides, they also asserted that, they, earlier to alienation, were cultivating the land as tenants. So, assuming the alienation was illegal, their right to tenancy would survived. The third point raised in defence was that the suit was bad for non-joinder of the other members of the joint family, namely respondent’s mother and sister. 4] In view of the rival pleadings, the trial 4 S.A.No.184.89 Court framed several issues, amongst which a issue of tenancy was also framed. However, the trial Court refused to refer the issue of tenancy to the Tenancy Court, at the request of present appellants. Being aggrieved by the such decision, the appellants came to this Court against such decision, but after hearing both the sides this Court dismissed their revision. In view of this, the issue of tenancy became irrelevant for the purpose of deciding suit, at least at the lower Courts level. 5] The trial Court held that the land was sold for legal necessity and so it dismissed the suit. In the appeal, the learned Judge of the Appellate Court held on the facts that the alienation of the land was not for legal necessity. He also held that the respondent’s mother and sister were not necessary parties, but while decreeing the suit the learned Judge of the lower Appellate Court passed the equitable order directing the division of the property in two parts. One third part would be retained by the appellants/purchasers and remaining would go back to the plaintiff for it would represent the shares of the respondent, his mother and his sister. 6] Being aggrieved by this Judgment, the Second Appeal is filed. The learned Advocate appearing for the appellants raised certain points. I will deal with the points one by one. 5 S.A.No.184.89 7] The first point that Mr.Dhorde raised is, although issue of tenancy was not sent for decision to the Competent Court, this Court having regard to the facts and the defence of the appellants should do so. He, thereby, suggested that whatever happened earlier in this regard is not binding on this Court. I am afraid, this argument can not be accepted at least in the Second Appeal. The Second appeal is filed under section 100 of the Civil Procedure Code, wherein this Court is supposed to examine as whether any substantial question of law would arise in the appeal. The issue of tenancy that was framed by the trial Court probably met untimely death when this Court dismissed the Civil Revision Application. Thereafter, as said above, the Courts below could not have dealt with this issue at all. The trial Court did not give any findings on that issue. 8] The second point raised by Mr.Dhorde is that the suit was bad for non-joinder of necessary parties, namely the respondent’s mother and sister. He said, under the garb of the suit for declaration and possession the respondent- plaintiff in fact had filed a suit for partition, in the alternative he also suggested the ultimate result of this litigation was passing of the decree of partition and so he said that the mother and sister of respondent/plaintiff were necessary parties. I am afraid, this argument is not 6 S.A.No.184.89 acceptable. This suit was not filed for partition, but this was filed for declaration that the alienation is bad in law. The respondent- plaintiff, as said above, states that he as a member of joint Hindu family was suing the appellants. Though, he did not say that he was acting as Karta of the family, the Courts below held that he could sue on behalf of other members of his joint family, and thereby they held that he acted as Karta. At this stage, it is not possible for this court to disturb such finding on facts. So, the suit can not be held to be bad for non- joinder of other members of the joint family. 9] The third point, Mr.Dhorde raised is that, the learned Judge of the lower Appellate Court could not realize that other two members of joint family of the respondent had lost their right to sue and to challenge the legality of the alienation and despite of this he held that they had share in the suit property along with the respondent/plaintiff. According to Shri Dhorde, this was serious error of law. I am afraid, this argument is also not acceptable. Fortunately, the third member of the family, namely the respondent- plaintiff attained the majority in 1978, and within three years from such event this suit was filed. No doubt, his mother and sister had lost long back their right to sue for similar cause of action. The moment, the younger member of the family succeeded in challenging the alienation, 7 S.A.No.184.89 their right would revive and they would be benefited due to such litigation. Needless to add here is that though the mother and the sister had lost the right to sue, they had not lost their right to the property. In view of this even the third point raised by Mr. Dhorde would fail. The appeal should, therefore, fail. The appeal stands dismissed. Consequently, the Civil Application No. 1469 of 1989 in Second Appeal No. 184 of 1989 stands dismissed. Sd/- (A.V. NIRGUDE, J.) MTK/ ok