1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.38 OF 2010 Pandurang s/o Sopanrao Kadam, age: 35 years, Occ: Agriculture, R/o Jod Parli, Tq.Parbhani, District Parbhani. Appellant Versus 1 Gyanba s/o Marotirao Kadam, age: 45 years, Occ: Agriculture, R/o Dharasur, Tq.Gangakhed, died, through his L.Rs: 1/1) Sarubai w/o Gyanba Kadam, age: 65 years, Occ: Household, R/o Dharasur, Tq.Gangakhed, District Parbhani. 1/2) Tukaram s/o Gyanba Kadam, age: 44 years, Occ: Agriculture, R/o Dharasur, Tq.Gangakhed, District Parbhani. 1/3) Datta s/o Gyanba Kadam, age: 43 years, Occ: Agriculture, R/o Dharasur, Tq.Gangakhed, District Parbhani. 1/4) Gavalan w/o Madhukar Harkal, age: 40 years, Occ: Household, R/o Vita, Tq. Pathri, District Parbhani. 1/5) Kushwarta w/o Babasaheb Sukre, age: 41 years, Occ: Household, R/o Wadgaon Sukre, Tq.Gangakhed, District Parbhani. 2 2 Tukaram s/o Gyanba Kadam, age: 22 years, Occ: Agriculture, R/o Dharasur, Tq.Gangakhed, District Parbhani. 3 Datta s/o Gyanba Kadam, age: 19 years, Occ: Agriculture, R/o Dharasur, Tq.Gangakhed, District Parbhani. 4 Namdev s/o Nilkanthrao Kadam, died, through his L.Rs.: 4/1) Datta s/o Namdev Kadam, age: 35 years, Occ: Agriculture, R/o Dharasur, Tq.Gangakhed, District Parbhani. 4/2) Udhav s/o Namdev Kadam, age: 30 years, Occ: Agriculture, R/o Dharasur, Tq.Gangakhed, District Parbhani. 4/3) Laxman s/o Namdeo Kadam, age: 25 years, Occ: Agriculture, R/o Dharasur, Tq.Gangakhed, District Parbhani. 4/4) Yamunabai w/o Namdev Kadam, age: 65 years, Occ: Household, R/o Dharasur, Tq.Gangakhed, District Parbhani. 4/5 Taramati w/o Ganpatrao Bhosale, age: 38 years, Occ: Agriculture, R/o Vita Bk. Post Tq.Sonpeth, District Parbhani. 4/6) Sakhubai w/o Venkati Bhosale, age: 32 years, Occ: Agriculture, R/o Vita Bk. Post Tq.Sonpeth, 3 District Parbhani. 4/7) Radhabai w/o Parmeshwar Jogdand, age: 31 years, Occ: Agriculture, R/o Narwadi, Post Naikota, Tq.Sonpeth, District Parbhani. 4/8 Janabai w/o Tulsiram Wakankar, age: 30 years, Occ: Agriculture, R/o Nathra, Tq.Pathri, District Parbhani. 5 Sopan s/o Munjaji Kadam, died, through his L.Rs.: 5/1) Gayabai w/o Janardhan, age: 45 years, Occ: Agri., Tq.Gangakhed, Dist.Parbhani. 5/2) Naganath s/o Janardhan, age: 18 years, Occ: & R/o as above. 5/3) Rukhminibai w/o Dnyanoba, age: 45 years, Occ: Household, R/o Wanji, Tq.Majalgaon, District Beed. 5/4) Eknath s/o Sopan, age:32 years, Occ: Agri., R/o Dharasur, Tq.Gangakhed, District Parbhani. 5/5) Kusum w/o Sakharam Kale, age: 30 years, Occ: Agri., R/o Jod Parli, Tq. And Dist. Parbhani. Respondents Mr.V.D.Salunke, advocate for the appellant. 4 CORAM: R.M.BORDE, J. DATE : 14 th January, 2010. P.C.: 1 This is an appeal by original defendant no.3 raising exception to the concurrent judgments passed by Courts below in respect of recording finding as regards grant of perpetual injunction in respect of an area admeasuring 9 acres 3 gunthas in favour of original plaintiffs. 2 Respondents – original plaintiffs instituted suit bearing R.C.S. No. 70/1977 claiming declaration to the effect that the sale deed executed by plaintiffs in favour of defendant no.1 be declared as nominal and as a security for advancement of loan by concerned defendant and is not out and out sale. Plaintiffs also claimed relief in respect of grant of injunction restraining defendants from interfering in peaceful possession of plaintiffs over an area admeasuring 9 acres 3 gunthas, which is claimed by plaintiffs to be belonging to them. 3 The trial Court granted decree in favour of plaintiffs declaring the sale deed in question to be nominal one and has also further granted order of injunction against defendants restraining them from interfering in peaceful possession of the plaintiffs over both pieces of land, which are subject matter of suit. On consideration of appeal presented by defendants no.2 and 3, first appellate Court has set aside the decree in respect of an area admeasuring 9 acres 3 gunthas holding the sale deeds effected by plaintiffs in favour of defendants to be nominal and by way of security. Whereas, decree of injunction in respect of remaining property claimed by plaintiffs has been confirmed by the first appellate Court. 5 4 Defendant No.3 – appellant herein has raised objection in respect of part of the decree which has been confirmed by the first appellate Court while dealing with the appeal. 5 I have perused judgments recorded by both the Courts below. Defendants have claimed their entitlement in respect of agricultural property, which is subject matter of Second Appeal on the strength of their tenancy rights. It is contended by defendants that they have been inducted as tenants over the disputed property by plaintiffs themselves and as such, they are in possession of agricultural property. However, claim raised by defendants in respect of their alleged tenancy has not been accepted by the tenancy authorities while dealing with issue of tenancy and the competent authority has declined to rule in favour of defendants. In this view of the matter, defendants cannot be permitted to make grievance in respect of grant of decree of perpetual injunction in favour of plaintiffs in relation to the property which has been claimed by them as tenants. The finding recorded by the Court below in that behalf cannot be termed as perverse. 6 No substantial question of law arises for consideration in the appeal. Appeal, therefore, stands dismissed. In view of dismissal of appeal, pending Civil Application No.582 of 2010 does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa3810