1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 258 OF 2010 IN WRIT PETITION NO. 1580 OF 2009 Balasaheb s/o. Limbaji Shinde Appellant Versus Ganpat s/o. Nivruttirao Irlapalle Respondents Mr. Sunil P. Deshmukh, Advocate holding for Mr. Jayant R. Shah, Advocate for the appellant Mrs. M.A. Kulkarni, Advocate for the respondents. CORAM : D.B. BHOSALE R.M. BORDE,JJ.. DATE : 21st February, 2011. PER COURT : 1] This LPA is directed against the judgment and order dated 2/9/2010 passed by the learned Single judge in W.P. No. 1580/2009, by which the writ petition has been dismissed. The writ petition was arising from Execution proceedings of the decree passed in R.C.S. No. 269/1976. The suit was filed for partition and separate possession by the respondent/ plaintiff against his brother - Defendant No.1. Defendant Nos. 2 and 3 are the purchasers of the joint family property. Insofar as defendant No.3, who is the appellant in the present appeal, is concerned, he purchased about half portion of the land bearing Survey No. 55, admeasuring 3 Acres 38 Gunthas (i.e. 2 Acres and 5 Gunthas.) Admittedly, this property was 2 purchased by the appellant – Defendant No.3, during the pendency of the suit. 2] We have perused the judgment and order passed by the learned Single Judge in the writ petition, so also, other material placed before the court. It is clear that insofar as the land purchased by the appellant is concerned, the sale deed executed by defendant No.1 in his favour has been declared null and void by the trial court and the respondent/plaintiff has been allowed to take possession of the said land (i.e. 2 acres 5 Gunthas out of Survey No.55). The decree has been confirmed by the first appellate court with slight modification, and thereafter, in the Second Appeal by this court with further modification. This court while confirming the decree recognized the right of the plaintiff to purchase the land in the event defendant No.1 decides to alienate his half share in Survey No.55. 3] Mr. Deshmukh, learned counsel for the appellant vehemently submitted that in view of the modification of the decree made by this court in the Second Appeal, the decree cannot be executed. In other words, he submitted that unless defendant No.1 is put in possession of the land purchased by the appellant and defendant No.1 decides to alienate the said portion of land, the respondent/plaintiff is not entitled to claim the said portion of land and/or he cannot execute the decree unless defendant No.1 decides to alienate the said portion of land. 4] In our opinion, the argument advanced by the learned counsel for the appellant deserves to be rejected outright. This court, by way of modification of the decree has only recognized the right of the respondent/plaintiff to purchase the land in possession of defendant No.1 i.e. remaining half portion of Survey No.55, in the event, defendant No.1 decides to alienate the said portion of land. From perusal of the judgment of 3 the courts below and more particularly, the operative portion of the judgments, reproduced by the learned Single Judge in the impugned judgment passed in the writ petition, it is clear that the suit against appellant/defendant No.3 in respect of Survey No.55 to the extent of 2 Acres and 5 Gunthas has been decreed, by declaring the sale deed executed by defendant No.1 in his favour to be null and void. The respondent/plaintiff is also allowed to recover his half share in the land Survey No.55. This part of the decree passed by the trial court has not been modified either by the first appellate court or by this court in the second appeal. 5] From perusal of the impugned judgment, it is clear that similar contentions, as advanced before this court, were advanced before the learned single Judge. The learned single Judge, in the light of the submissions advanced by learned counsel for the appellant and after considering the judgment and orders passed by the courts below, in paragraph 9 of the impugned judgment, has observed thus :- “It is no doubt true that when Second Appeal No. 334/1999 is decided by this court on 22/2/2001, the judgment and decree passed by the appellate Court confirming the order modifying the decree passed by the trial court merges in the order passed in Second Appeal. The Second Appeal confirms the judgment and decree passed by the trial Court as modified in Appeal. Therefore, even unmodified part of order passed in appeal, also becomes part and parcel of the judgment and decree passed in Second Appeal No. 334/1999. The part of the decree which is confirmed upto the stage of Second Appeal is that the defendant No.1 is directed to execute the sale deed in respect of suit property in favour of the plaintiff. In the Regular Civil Appeal, decree of the trial court was modified. It was directed that in case of the defendant No.3 sale deed should be 4 executed by defendant No.1 in favour of the plaintiff. This has been confirmed in Second Appeal. In view of this, the petitioner is not entitled to remain in possession of the suit property and he is the purchaser pending the suit which was filed by the respondent plaintiff. In view of this, no fault can be found in the order passed by the trial Court issuing warrant of possession. It is informed that such a sale deed has been executed on 7/6/2001. Thus the plaintiffs have become owners of the suit property on the basis of such sale deed.” 6] We do not find any reason to take a view different from the one taken by the learned Single Judge. In the result, LPA is rejected. Civil application No.12896 of 2010 is accordingly disposed of. [R.M. BORDE,J] [D.B. BHOSALE,J.] grt/wp