1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.163 OF 2004 with CIVIL APPLICATION NO.3364/2010. Laxman s/o Naga Koneri, (dies through his L.Rs.) 1) Narsabai Laxman Koneri & Ors. - APPELLANTS VERSUS 1) Nagoba s/o Rajaram Potdar & Ors. -RESPONDENTS ***** Mr.MM Patil-Beedkar Advocate for Appellants; Mr.VC Solshe, Advocate for Resp.Nos. 1A to 1C. ----- CORAM : K.U.CHANDIWAL, J. DATE : 18th March, 2010. PER COURT : 1) Heard learned Counsel extensively. 2) Plaintiff – Nagoba sought recovery of possession of Gram panchayat house No.110, situate at Lohagaon, Tq.Biloli and also for perpetual injunction. His action was partly allowed before the learned Civil Judge, Junior 2 Division, Biloli. Defendant no.1 (purchaser) was restrained from changing the nature of suit property and the relief of recovery of possession, being not properly established, was disallowed. The plaintiff felt aggrieved by such order, challenged the same before the learned Additional District Judge, Nanded by Regular Civil Appeal No.78/1984, and learned Judge, by judgment dated 5th September, 1991, on analyzing the evidence, reversed the findings of the learned Joint Civil Judge, Junior Division, except the relief of perpetual injunction and decreed the suit (RCS No.397/1980), directing the original defendant no.1(appellant), to deliver peaceful and vacant possession of the suit house to the plaintiff (respondent herein). The appellant herein was restrained from demolishing the suit house or from raising any new construction. There was a decree of perpetual injunction against him. These directions of the learned Additional District Judge, Nanded are questioned by the original Defendant no.1-Laxman 3 in the Second Appeal. 3) Mr.Patil appearing for the appellant submits, the very base of the suit is legally not maintainable as without there being a relief of declaration, to get the sale-deed in favour of Laxman (appellant) executed by Parwatibai cancelled, there should not have been a suit for possession. He submits, when the Court has held, Parwatibai (original defendant no.2) had share in the suit property, the learned Judge should have moulded the relief from one of possession to suit for partition and ought to have considered appellant's entitlement to seek partition as his vendor Parwatibai had a stake in the house property. He submits, the purchase by the defendant no.1 dated 14.1.1974 from the defendant no.2 - Parwatibai was under a valid conveyance, Parwatibai having a title to divest. 4) The contention that Parwatibai had title to divest the property in favour of the appellant 4 is rightly negatived by both the courts. Mere mutation entry in the name of Parwatibai, excluding other owners of the immovable property - a house, will seldom endorse ownership to Parwatibai to further alienate the same or to defuse a rightful claim of the other owners in the property. The appellant hails from the same village, he naturally is aware of the genealogy of the parties, and with his eyes open, has entered into the sale transaction, when consciously it could be expected to search title of his vendor - Parwatibai. This is more clear, as the defendant no.1 could not get a title of the suit property from defendant no.2. Defendant no.3 is cousin of the plaintiff; defendant no.4 is niece of plaintiff, while defendant no.2 is cousin’s daughter-in-law of the plaintiff. Vithoba died long back, leaving behind him three sons, viz., Raghunath, Tukaram and Rajaram. All these three brothers are no more. Rajaram is survived by plaintiff whereas Raghunath died issueless. The suit house belongs to Raghunath. 5 He died intestate. Tukaram was survived by Vithoba, Baba and Manika. Baba and Vithoba are no more. Vithoba's son Laxman also left behind the deft.no.2 – Parwatibai. Baba has left behind defendant no. 4 - Gangabai. At the relevant time, defendant no.2 – Parwatibai was residing in the suit house with her husband and father-in- law. It was not suitable for other family members to reside as the portion thereof has collapsed. Possession of defendant no.2 was permissive. Defendant no.2, while staying in the suit house, got her name mutated in Gram Panchayat property Register and then entered into the transaction dated 14.1.1974 by executing a sale-deed in favour of appellant-laxman and based on such sale-deed, the appellant occupied the suit house somewhere to 6th November, 1978 to 7th November, 1978. 5) Mr.Solshe submits, the decree has already been executed on 1.1.1992. Possession receipt was executed by plaintiff in favour of 6 the bailiff pursuant to the execution proceedings. 6) The above details of the evidence will certainly indicate that when Parwatibai had virtually no right to exclusively alienate the property in favour of the appellant, any transfer effected by Parwatibai, would not be adversely affecting the rights of legitimate owner, the plaintiff. Other owners having not joined with plaintiff are sued as defendants. This naturally complies a legal position. The contention of Mr.Patil that there should have been a suit for declaration of cancellation of sale-deed in the above factual backdrop of the events is not legally warranted. The very transaction of the appellant is with question-mark as to its legitimacy. Even if the sale-deed is deemed to to have been valid to the extent of Parwatibai, the appellant herein has other recourse available in the eyes of law, but, he cannot now canvas that the nature of suit should have been moulded 7 by the learned Judge from a decree of possession to a decree of partition. 7) Considering all the aspects, I do not see that the Second Appeal projects any question of law or substantial question of law to interfere with the Judgment of the first Appellate Court. Second Appeal lacks merit, it is dismissed with CA. The order is stayed for a period of six months. (K.U.CHANDIWAL) JUDGE bdv/sa163.04