1 sa773.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 773 OF 2010 Vimalbai Raman Gujar and others ...Appellants (original defendant nos. 2, 9, 10, 11 and 12) VERSUS Sau.Shantabai Vasant Gujar and ors. ...Respondents ( No.1 original plaintiffs and others original defendants) ..... Shri A.B.Girase, advocate holding for Shri P.D.Bachate, advocate for the appellants Shri M.H.Patil, advocate for respondent no. 1 (original plaintiff) ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 17 th February, 2011 PER COURT : 1 Heard Shri A.B.Girase, advocate holding for Shri P.D.Bachate, advocate for the appellants and Shri M.H.Patil, 2 sa773.10 advocate for respondent no. 1 (the plaintiff). 2 The appellants herein are the original defendant nos. 2, 9, 10, 11 and 12; whereas respondent no.1 herein is the original plaintiff. The appellants herein have filed the present Second Appeal challenging the judgment and decree, passed by the learned Ad hoc District Judge-1, Dhule on 8.12.2009 in Civil Appeal No. 95 of 2005, as well as the judgment and decree, passed by the Civil Judge, Senior Division, Dhule on 24.6.2005 in Special Civil Suit No. 322 of 1998. Accordingly, there are concurrent findings against the appellants herein. The parties herein after are referred to as per their original status i.e. ‘the plaintiff’ and ‘the defendant’. 3 The plaintiff has filed the suit against the defendants for partition and separate possession, to the extent of 1/4 th share in the suit property, and the consequential reliefs that the defendants/respondents be restrained from creating third party interest in the suit property as described in the plaint. 4 It is necessary to give the genealogy and same is as follows :- 3 sa773.10 Daulat | wife Bhagirathibai (defendant no.1) __________________________|_________________________ | | | Shantabai Vimalbai Sushilabai Purushottam (plaintiff) (deft. no.2) (deft. no.13) ________________________|_____________ | | | | | | Nilam Rajendra Vijay Raman | (deft.no.9) (deft no.10) (deft.no.11) (deft.no.12) | | _______________________________________________|____ | | | | | | Bhatu Ramkrishna Rajubai Kalpanabai Sangitabai Rekhabai (deft.no.3) (deft.no.4) (deft.no.5) (deft.no.6) (deft.no.7) (deft.no.8) 5 Accordingly, it is apparent that Daulat had three daughters, namely Shantabai (plaintiff), Vimalbai (defendant no.2) and Sushilabai (defendant no.13). Bhagirathibai (defendant no.1) is the mother of three daughters; whereas appellant nos. 2 to 4, who are defendant nos. 9, 10, 11 and 12 are the children of appellant no. 1 herein (defendant no.2), and appellant no.5 Raman is the husband of appellant no.1 herein. 6 According to the plaintiff, the sharers referred herein 4 sa773.10 above had undivided share in the suit property, to which defendant nos. 9 to 17 did not have any right or concern. The plaintiff claimed partition and separate possession on 15.11.1998, which was denied. It is also the case of the plaintiff that the plaintiff got the knowledge that defendant nos. 9 to 17 are referred to the revenue record by adopting illegal method, and therefore, the plaintiff had issued public notice on 27.11.1998 to that effect. The alleged illegal alienations made in favour of the purchasers/defendants are described in the plaint. The land Gat No. 240 came to be alienated by deceased Daulat in favour of defendant no. 9 by virtue of gift deed, dated 13.10.1982 and same was again alienated by defendant no. 9 in favour of defendant no.13 on 30.4.1993. It is also alleged that one Draupadabai, who is not made party to the suit, had alienated the land Gat no. 78 in favour of defendant no.13 by way of registered sale deed dated 30.1.1996. This alienation was challenged in Special Civil Suit No. 46 of 1996 by the present defendant no.1 and the said suit was decreed, which was never challenged in appeal, and therefore, this property became the property of Hindu Undivided Family. The said Gat No. 78 again came to be alienated by defendant no.13 in favour of defendant nos. 15, 16 and 17 illegally, and therefore, it is the claim of the plaintiff that she is entitled to seek the declaration to that effect. 5 sa773.10 7 It is also the case of the plaintiff that Bhagirathibai (defendant no.1) had alienated the land Gat No. 128/1-5 in favour of defendant nos. 1 and 2 by mutation, which was subsequently alienated in favour of the husband, sons and daughters of defendant no.2 by adopting illegal methods. Moreover, defendant nos. 9 and 10 alienated Gat Nos. 128/1-3 and 128/1-4 in favour of defendant no. 14. Defendant no.2 had alienated southern portion of Gat No. 128/1-1 in favour of defendant no.19 by virtue of sale deed dated 30.7.1998 and northern portion of the same land in favour of defendant no.18. Defendant nos. 20, 21 and 22 came in picture by virtue of alienations dated 31.7.1998 in respect of northern, middle and southern portions of land Gat No. 128/1-5. Accordingly, on these grounds, the plaintiff had prayed for partition and separate possession and for other equitable reliefs challenging the said alienations. 8 The said suit was contested by defendant nos. 13 and 14, as well as by defendant nos. 19 to 22, by filing their respective written statements. However, rest of the defendants were either ex parte or the suit proceeded against them without written statement. 6 sa773.10 9 At this juncture, it is to be noted that the suit against the present appellants i.e. defendant nos. 2, 9, 10, 11 and 12 proceeded either ex parte or without written statement, and apparently, they have not made any efforts to set aside the said order and to file their written statements before the Trial Court. 10 After considering the pleadings on record, the Trial Court framed the issues. Accordingly, after analysing and assessing the evidence adduced and produced by the parties, the Trial Court decreed the said suit partly against defendant nos. 1 to 8, but dismissed the suit against defendant nos. 9 to 22, as stated therein, by the judgment and order dated 24.6.2005, and thereby declared that the plaintiff has separate 1/4 th share in Gat No. 20/2 of village Japi, Taluka and District Dhule and 1/4 th share in the house properties, more particularly as described in para no. 1-B of the plaint and also directed that the decree be sent to the Collector, Dhule for partition of land Gat No. 20/2 to the extent of 1/4 th share and for giving separate possession to the plaintiff and further directed to appoint Court Commissioner for partition of house properties Nos. 5, 125 and 374 of village Japi, Taluka and District Dhule to the extent of 1/4 th share and for giving separate possession to the plaintiff. However, being aggrieved and dissatisfied by the said judgment and 7 sa773.10 decree, the plaintiff preferred Civil Appeal No. 95 of 2005 before the District Court, Dhule. 11 After reappreciating the evidence on record and considering the rival submissions, the learned Ad hoc District Judge-1, Dhule allowed the said appeal by judgment and decree, dated 8.12.2009 and impugned judgment and decree there before was set aside as well as modified, and thereby the suit for partition and separate possession was dismissed in respect of the agricultural land Gat No. 240, situated at village Japi, Taluka and District Dhule; whereas the same was decreed in respect of rest of the house properties, as described in the plaint, and it was declared that the plaintiff as well as her sisters, namely Vimalbai and Sushilabai have got 1/3 rd share each in the suit property and are entitled to effect partition and separate possession to that effect, as well as it was made clear that defendant nos. 9, 10, 11 and 12 i.e. appellant nos. 2 to 5 herein, will step in the shoes of Vimalbai, who is defendant no.2 i.e appellant no.1 herein, as well as it was made clear that defendant nos. 3, 4, 5, 6, 7 and 8 will step in the shoes of their mother defendant no.13, namely Sushilabai, inclusive of their father Purushottam. It was also declared that the purchasers of land Gat No. 240 are bona fide purchasers for value without notice, and 8 sa773.10 therefore, that alienation was binding upon the plaintiff and her two sisters. It was further declared that rest of the purchasers/defendants/respondents are not bona fide purchasers for value without notice in respect of the lands purchased by them out of suit property and those alienations are not binding upon the plaintiff and her two sisters. Accordingly, partition of the house property was directed to be made with the help of the Court Commissioner or with the help of City Survey Officer, Dhule, as well as partition of agricultural lands was directed to be effected through the District Inspector of Land Records, Dhule and separate inquiry in respect of mesne profits was directed. 12 Feeling aggrieved and dissatisfied by the said judgment and decree, the appellants herein have filed the present Second Appeal, assailing the judgments of both the lower Courts. 13 Admittedly, as mentioned herein above, the appellants herein have not filed written statement before the Trial Court and the suit proceeded against them without written statement, and as mentioned herein above, the appellants apparently have not made any efforts to set aside the said order and to put forth their case before the Trial Court. 9 sa773.10 14 Learned counsel for the respondents pointed out that Shri Thakwani, advocate appeared for the appellants before the First Appellate Court and the observations have been made by the First Appellate Court in para no.8 that he (Shri Thakwani, advocate) is not going to oppose the case made out by the plaintiff, but made submissions to dispose of the appeal, and ultimately, prayed for modification in the decree. Accordingly, in fact, while passing the judgment and decree in Civil Appeal, the First Appellate Court modified the judgment and decree passed by the Trial Court, thereby giving 1/3 rd share to appellant no.1 herein, namely Vimalbai and it is also made clear that appellant nos. 2 to 5 i.e. defendant nos. 9, 10,11 and 12 would step into the shoes of appellant no.1 herein, since original ancestor Daulat had three daughters, namely Shantabai (plaintiff), Vimalbai (defendant no.1) and Sushilabai (defendant no.13). Apparently, the reasoning adopted by the First Appellate Court cannot be faulted with in that respect. 15 Moreover, it is also pertinent to note that the defendants, against whom the judgment and decree has been passed, have not challenged the same; whereas the defendants i.e. appellants herein have challenged the judgment and decree passed by the Trial Court 10 sa773.10 as well as the First Appellate Court without making any efforts in respect of filing their written statements before the Trial Court, which cannot be permitted. Apart from that, after considering the impugned judgment and decree, passed by the First Appellate Court, it appears that it is based upon the sound legal footing and reasoning adopted therefor cannot be faulted with. Accordingly, no substantial question of law could be formulated in this appeal, and hence, the same lacks merits, and therefore, stands dismissed. (SHRIHARI P. DAVARE, J.) dbm/sa773.10