1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 192 OF 1990 01. Bhivsan Kisan Kapse age major, occup.agril. resident of Pangri, Taluka Sillod. 2. Shantabai w/o Deorao Misal, Appellants/ori. age major, r/of Pangri, third party and Taluka Sillod. appellants in appeal before District Court. versus 1. Ramrao Dhondiba Kakade, age major, occup. agril. r/of Pangri, Tq.Sillod, District Aurangabad. 2. Laxman Dhondiba Kakade, age major, occup. agril. r/of Pangray, Tq.Sillod, District Aurangabad. (Since deceased through Legal heirs as under:-) 2-A. Tanhabai Laxman Kakade, age 40 years, occup.agril. 2-B. Nana Laxman Kakade, 2 age 25 years, occup.agril. both residents of Veergaon, Taluka Sillod,Dist.Aurangabad. 3. The Chairman, Vividh Vikas Respondents/ Karyakari Seva Sahakari Nos.1 & 2 ori. Society, Pangri, Taluka Pltff. & Deft. Sillod, District Aurangabad. No.1. Resp.No.3 ori.deft. No.2. ----- Shri H.T. Joshi, Advocate for the appellants. Shri A.S. Barlota, Advocate for Respondent No.1. Respondent Nos.2(A),2(B) and Respondent No.3 served and absent. Coram : P.R.Borkar,J. Date : 13/01/2010. ORAL JUDGMENT 01. Present appellants, who were not parties to original proceedings i.e. Regular Civil Suit No. 22 of 1983, had filed Regular Civil Appeal No. 89 of 1981 in the District Court, Aurangabad against the judgment and order passed by the learned Joint Civil Judge, Junior Division, Sillod on 9.9.1986 thereby decreeing said R.C.S. No.22 of 1983 filed by present Respondent No.1 Ramrao against Respondent Nos. 2 and 3 herein. 3 The said appeal before the District Court filed by present appellants was dismissed by the learned Joint District Judge on 16.2.1990. 02. Briefly stated, Respondent No.1 Ramrao is the plaintiff in above said R.C.S. No.22 of 1981 filed against his brother present Respondent No.2 Laxman for partition. Present Respondent No.3 was not party to the original suit, but was subsequently added as Defendant No. 2 to the said suit since he had purchased the suit house from Defendant No. 1 (present respondent No.2) during pendency of the suit. 03. it is the case of Respondent No.1-plaintiff Ramrao that suit house bearing gram panchayat No. 15 situated at village Pangri, Taluka Sillod District Aurangabad, more particularly described in the plaint was allotted to the share of Dhondiba who was the the father of plaintiff and Respondent No.1. Dhondiba died on 18.11.1977 and therefore both, Plaintiff Ramrao and Defendant No.1 Laxman, who were sons of Dhondiba, got 1/2 share in the suit house. Plaintiff demanded his 1/2 share in the said house from Defendant No.1 and since defendant No.1 refused, plaintiff filed suit for partition and separate possession. The suit was 4 filed on 21.2.1983. 04. Defendant Nos. 1 and 2 (present Respondent Nos. 2 and 3) filed their Written Statements at Exhibits 28 and 29 respectively. Relationship was admitted, but it was denied that till the year 1975 there was joint residence.. Ultimately, the trial court held that the plaintiff proved the fact that the suit house was joint family property of himself and defendant No.1 and, therefore, plaintiff was entitled to 1/2 share therein. Accordingly, decree was passed by the learned joint Civil Judge, Junior Division, Sillod, on 9.9.1986. 05. Thereafter execution proceedings were filed wherein present appellants resisted and thereafter they filed R.C.A. No.89 of 1989 in the District Court which came to be entertained in view of order passed by this Court on 10.12.1987 in M.A. No. 9 of 1987 (which is referred to as M.A. No.29/1987 in para 5 of judgment of the District Court). The learned Joint District Judge, Aurangabad dismissed the said appeal on 16.2.1990, holding that the decree passed by the trial court is legal and proper and hence, cannot be set aside. It is this order of the District Court 5 which is challenged in the present second appeal. 06. This second appeal is admitted on following substantial questions of law framed as per order dated 13.1.2010. 1. Whether the present second appeal at the instance of third party is tenable ? 2. Whether the findings given by the District Court are in any way perverse and not based on evidence ? 07. Now, it is the case of present appellants that even on the date of institution of the suit i.e. 21.2.1983, they were in actual possession of the suit house and, therefore, plaintiff Ramrao (present Respondent No.1) should have impleaded them as Defendants to the suit. It is further alleged that appellant No.1- Bhivsan entered into an agreement for purchase of northern side 1/2 portion of the property from original Defendant No. 1 Laxman and the said agreement was executed on 11.2.1982. Remaining southern side half portion was agreed to be sold by Laxman to one Rupchand as per agreement dated 7.5.1980. In pursuance of the said agreements, the purchasers were put in possession of the respective 6 portions. It is further stated that Respondent No.2 Laxman (defendant No.1) executed sale deed in favour of appellant No.1 on 1.6.1988 whereas Rupchand sold his portion purchased from Laxman to Appellant No. 2 Shantabai on 17.4.1986. However, it is not mentioned when Rupchand purchased part of the suit property from Laxman pursuant to alleged agreement in his favour. In either case, it is not contention of any of the appellants that the appellants or Rupchand had any contract with original plaintiff Ramrao. There is, therefore, no reason why Respondent No.1-plaintiff Ramrao should not get his share in the house which is the ancestral property. Whether the sale deed in favour of Respondent No. 3 society is valid or the sale deeds in favour of appellants are valid, are not the questions regarding which there were pleadings either in the trial court, or in the first appellate court. In the circumstances, the conclusion that plaintiff Ramrao is entitled to partition and separate possession of his 1/2 share in the suit house cannot be set aside. To that extent the decree passed by the trial court will have to be maintained. 08. However, so far as rights of the appellants are concerned, there are no pleadings between the 7 appellants and Respondent No.3 society and in my considered view, the remedy of the appellants is to file separate suit for declaration of title and possession, if they are not in possession or they may file suit simplicitor for declaration of their title. So, present appeal fails as decree in favour of Respondent No.1 Ramrao is binding on appellants and Respondent Nos. 2 and 3. 09. With clarification as above, second appeal is dismissed. pnd/sa192.90 (P.R.BORKAR, J.) 8