1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 188 OF 2009 Gangadhar Fakirchand Raghute Vs. Shridhar Fakirchand Raghute & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri S. G. Raut Adv. for appellant. Shri A. A. Naik Adv. for respondents. CORAM: C. L. PANGARKAR J. Dated: 3 rd AUGUST, 2009. This is a second appeal against the judgment and decree passed in Civil Appeal No. 116 of 2003 filed by the original plaintiff. 2. Plaintiff had instituted a Civil Suit No. 521 of 1995 (new 3448/01) for partition and separate possession against his father, brother and the alienee. It was the contention of the plaintiff in that suit that the property was ancestral property and the defendant No.1 his father did not have a right to alienate the suit property. In the 2 said suit the defendants No. 1 and 2 i. e. father and brother of the plaintiff had filed their Written Statement contending that suit property was self acquired of defendant No.1 and was not acquired out of the joint family funds. Defendant No.3 who is an alienee also contested the suit. She not only contested the suit but filed counter claim for the possession of the portion of the suit property. 3. The learned Judge of the trial Court framed issues and he found that the plaintiff had failed to prove that defendant No.1 had no authority to alienate the property and sale deed executed in favour of defendant No.3 was neither illegal nor void and defendant No.3 was entitled for possession. It was also held that the suit property was not an ancestral property. Holding so the learned Judge of the trial Court dismissed the suit and decreed the counter claim. Against that judgment and decree a single appeal was preferred before the District Judge by the plaintiff. 4. The learned District Judge concurred with the finding of the trial Court and dismissed the appeal. Against that appeal the present appellant had preferred another Appeal No. 139 of 2009 before this Court being Second Appeal. The said appeal was heard by this Court and was dismissed in limine. This is another appeal preferred against the same judgment and decree by the same 3 appellant/plaintiff. 5. Learned counsel for the appellant contends before me that the appeal No. 139 of 2009 which is already dismissed was preferred against the counter claim which was decreed. While this appeal is against the dismissal of the suit of the plaintiff. He submits that therefore the appeal i. e. present appeal is also maintainable. 6. Shri Naik learned counsel for the respondents submits that two appeals were not maintainable against the same judgment and decree and the finding is recorded by this Court in other appeal i.e. Appeal No. 139 of 2009 should bind this Court. 7. I find much substance in the contention of Shri Naik learned counsel for the respondents that two appeals cannot lie against the single judgment and decree. There is only one decree in the First Appeal preferred before the District & Sessions Judge and therefore only one appeal can lie against such a judgment and decree. The appellants having preferred appeal No. 139 of 2009 do not have right to prefer another appeal being second appeal. Appeal No. 139 of 2009 which was first preferred against that judgment and decree has been dismissed in limine and in the circumstances this Second Appeal is not at all maintainable. 8. If we go though the order passed by this Court we will 4 find that this Court has considered the questions as to whether finding recorded by the trial Court with regard to the alienation and right to alienate were perverse or not. This Court has observed that, that finding could not be said to be perverse. In view of the said observation made by this Court on merit the court cannot over again consider the same question. This Court cannot therefore enter into exercise of reassessing everything once again. Finding as recorded by this Court in Appeal No. 139 of 2009 would bind this Court and this appeal therefore is not at all maintainable. 9. Learned counsel for the appellant submits that he has filed a review application against the order passed by this Court dismissing the appeal No. 139 of 2009 in limine. That may be so, that makes no difference but the fact remains that no such second appeal i. e. second appeal 188 of 2009 can be entertained because the High Court can entertain only one appeal against a single judgment and decree by the same party. Appeal is therefore dismissed in limine. JUDGE svk 5 6 7 8