1 S.A.249.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 249 OF 2010 Laxmibai @ Pillyabai Angadrao Hande,, Age : 42 Years,Occ.: Agriculture,, R/o Nakhatewadi(PO Ukhali), Taluka Sonpeth,District Parbhani ...APPELLANT. VERSUS 1. Bachatrao S/o Narayan Deokate Age :52 years,Occup.:Agriculture, 2. Bachatrao S/o Narayanrao Deokate Age :40 years,Occup.:Agriculture, 3. Pandurang S/o Narayanrao Deokate Age :40 years,Occup.:Agriculture, 4. Muktabai W/o Narayanrao Deokate Age :68 years,Occup.:Agriculture, 5. Digambar S/o Ghanshyam Deokate Age :62 years,Occup.:Agriculture, All R/o Bhtekarwadi, under Ukhali, Taluka Sonpeth,District Parbhani ...RESPONDENTS. ... Shri.D.A.Mane,Advocate holding for Shri.Milind Patil, Advocate for Appellant. Shri.S.G.Chaplagaonkar,Advocate for Resp.No.5 ... CORAM: SHRIHARI P.DAVARE, J. DATE : 12th JANUARY, 2011. 2 S.A.249.10 PER COURT : 1. Heard learned counsel for appellant and respondent No.5. 2. The parties are referred hereinafter as per their original status i. e. Plaintiff and defendants. 3. Unsuccessful Plaintiff has preferred present Second Appeal challenging the dismissal of Appeal bearing Regular Civil Appeal No. 27 of 2006, by learned District Judge-1 Gangakhed, on 09th November, 2009, preferred by the present plaintiff against the dismissal of her suit bearing Regular Civil Suit NO. 418 of 1997, by 2nd Joint Civil Judge Junior Division, Gangakhed on 20th March, 2006, partly. 4. Plaintiff filed Regular Civil Suit No. 418 of 1997, against the defendants in the Court of Joint Civil Judge (Junior Division), Gangakhed, on 3 S.A.249.10 19th December, 1997 seeking partition, possession and decree of preemption for remaining share in the suit properties, as successor of her father. She also sought injunction against the defendants for not interfering in her joint possession over the suit properties. Defendant Nos.1 to 3 are her brothers, defendant No.4 is her mother, whereas defendant No.5, namely, Digambar S/o Ghanshyam Deokate is her uncle. However, said suit was partly decreed by the learned Trial Judge, by Judgment and decree dated 20th March, 2006. It was declared that plaintiff is owner of 1/20th share in the suit properties, but her prayer in respect of other reliefs, in the nature of injunction and preemption were not granted. 5. Being aggrieved and dissatisfied by the said Judgment and Decree, plaintiff preferred Regular Civil Appeal No. 27 of 2006 before District Judge – 1, Gangakhed. However, said Appeal came to be dismissed on 09th November, 2009. Being aggrieved and dissatisfied with dismissal of said Appeal 4 S.A.249.10 plaintiff has preferred present Second Appeal, assailing the same. 6. However, it appears that consent decree was passed in Regular Civil Suit No. 405 of 1997 on 06th December,2006, wherein plaintiff’s father Narayan and defendant No.5 Digamber Ghanshyam Deokate, uncle of the plaintiff were the parties. It also appears that plaintiff’s father namely Narayan accepted Rs.40,000/- from defendant No.5 Digamber and transferred part of the suit properties in his favour. Admittedly, said consent decree has not been challenged prior to filing of Regular Civil Suit No. 418 of 1997 by the plaintiff, till December, 1997. Her father, namely, Narayan is no more. The suit properties were mutated in the name of her father, which were ancestral properties and plaintiff was not coparcener at the time of death of her father. Her 1/20th share was decided, considering the share of Narayan in the whole properties. 5 S.A.249.10 7. It also appears that part of the suit property was already transferred to defendant No.5 before filing suit bearing R.C.S. No.418 of 1997, who is in possession thereof, and therefore, learned Trial Court as well as First Appellate Court rightly refused the prayer of injunction and preemption of the plaintiff herein. 8. In the circumstances, no substantial question of law could be formulated and present Second Appeal lacks merit. Therefore, same stands dismissed. Sd/- [SHRIHARI P.DAVARE, J.] MTK