(1) SA. 617.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 617 OF 2007 1] Haribhau S/o Laxman Tayade, Age : 31 years, Occu.: Agri., R/o Devli, Post. Shilegaon, Tq. Gangapur, Dist. Aurangabad 2] Karbhari S/o Rustum Pavar, Age : 63 years, Occu.: Agri., R/o Borsar Bk., Tq. Kannad, Dist. Aurangabad 3] Baburav S/o Rustum Pavar, Age : 55 years, Occu.: Agri., R/o Borsar Bk., Tq. Kannad, Dist. Aurangabad 4] Anna S/o Rustum Pavar, Age : 45 years, Occu.: Agri., R/o Borsar Bk., Tq. Kannad, Dist. Aurangabad .. Appellants (Orig. Defendants) VERSUS Janabai w/o Vishvanath Pawar, Age : 56 years, Occu.: Agri., R/o Borsar Bk., Tq. Kannad, Dist. Aurangabad .. Respondent (Orig. Plaintiff) WITH CIVIL APPLICATION NO. 9038 OF 2007 IN SECOND APPEAL NO. 617 OF 2007 Haribhau S/o Laxman Tayade and others .. Applicants VERSUS Janabai w/o Vishwanath Pavar .. Respondent Mr. Vikram Dhorde, Advocate h/f. Mr. R.N. Dhorde, Advocate for the Appellants/Applicants None present for the respondent ... (2) SA. 617.2007 AND WRIT PETITION NO. 3884 OF 2005 Haribhau Laxman Tayade, Age : 34 years, Occu.: Agri., R/o Devali (Shiregaon), Tq. Gangapur, Dist. Aurangabad .. Petitioner (Orig.Defendant no.4) VERSUS 1] Bala Madhavrao Pawar, Age : 75 years, Occu.: Nil, R/o Borsar (Bk.), Tq. Kannad, Dist. Aurangabad 2] Asarabai w/o Vinayak Pawar, (since deceased, issueless) 3] Vishwanath Madhavrao Pawar, since deceased through his LRs.:- 3-A) Janabai Vishwanath Pawar, Age : 57 years, Occu.: Household, R/o Borsar (Bk.) Tq. Kannad, Dist. Aurangabad 4] Karbhari Ananda Pawar (Patil) Age : 48 years, Occu.: Agri., R/o Shevati, Tq. Kannad, Dist. Aurangabad 5] Thakaji Nathu Gaikwad, Age: 78 years, Occu.: Agri., R/o Borsar (Bk.), Tq. Kannad, Dist. Aurangabad 6] Samshoddin Hasan, Age: 71 years, Occu.: Agri., R/o Borsar (Bk.), Tq. Kannad, Dist. Aurangabad .. Respondents (No.1 Orig.Plaintiff and Nos.2 to 6 Orig.Defendants) Mr.H.D. Deshmukh, Advocate for the petitioner None present for the respondents though served ... (3) SA. 617.2007 CORAM : K.U. CHANDIWAL, J. DATED : 28TH APRIL, 2010 PER COURT:- 1] Heard learned counsel for the appellants extensively. The concurrent findings recorded against the original defendants are questioned in the Second Appeal. The learned counsel while criticising the judgments, sought to formulate following substantial question of law:- [I] Whether the Courts were justified in decreeing the suit to the extent of cancellation of the sale deed dated 9.6.2004 executed by the appellant no.1 Haribhau in favour of the appellant nos. 2 to 4 namely Karbhari, Baburav and Anna without there being any order of cancellation or challenge to the earlier sale deed in favour of Haribhau, dated 3.2.1999, executed by Asarabai, wife of Vinayak? 2] The plaintiff is the wife of one Vishvanath who died on 27.12.2002. The suit property was admittedly an ancestral joint family property of Vishvanath and his two brothers Vinayak and Bala. Asarabai is wife of Vinayak. Vinayak died in the year 1976 issueless, his widow Asarabai being the only legal representative. Bala filed Regular Civil Suit no. 21 of 1999 against his brother Vishvanath and Asarabai. Asarabai had sold suit property to Appellant no.1 Haribhau on 3.2.1999. The appellant (4) SA. 617.2007 no.1 Haribhau was also made a party to the said proceedings. The said suit was dismissed on 11.1.2002. In the pleadings of said suit, Asarabai confirmed the jointness of the property though she had before few days executed sale deed in favour of appellant no.1 Haribhau. The first appeal preferred, being Appeal no. 53 of 2002, is dismissed on 11.2.2004. 3] In another round of litigation, Haribhau filed Regular Civil Suit no. 148 of 2004 against Bala, his wife and his children as well as Asarabai and Janabai for perpetual injunction. The said suit was dismissed on 6.1.2005 while the counter-claim filed by Bala was allowed. It is matter of record that the sale deed of Asarabai executed in favour of the defendant no.1 Haribhau being of 3.2.1999, it had it's ramifications by virtue of the suit and counter- claim in Regular Civil Suit no. 148 of 2004. 4] The sale transaction by the present appellant no.1 to the appellant nos.2 to 4 dated 9.6.2004 was not accepted by the branch of Janabai, which she objected before the Tahsildar. It is a matter of record that Haribhau is nephew of Asarabai and the matter more leans to indicate that, in order to deprive the legitimate rights in the branch of the family, such fictitious sale deeds are executed. (5) SA. 617.2007 5] The controversy now relates to the title of the suit property as plaintiff Janabai submits and proved that it was an ancestral property of her husband Vishvanath, having received the same in partition having taken place between him and his two brothers long back. This has been confirmed in the pleadings of Asarabai in Regular Civil Suit no. 21 of 1999. It may be that Asarabai collusively made such a statement however, the fact remains that status of Vishvanath to receive and enjoy the property was not controverted. Haribhau, nephew of Asarabai dared to purchase the property knowing the cloud surmounting the suit property. Naturally since he wanted to have mileage in the controversy, he shall face the consequences arising out of such transaction. 6] The analysis of evidence before both the Courts indicates that though there is a sale deed executed by Haribhau referred to above in favour of the appellant nos. 2,3 and 4 the possession remained with Janabai or branch of Vishvanath. The oral and documentary evidence produced before the Court annexed in the form of certified copy of Regular Civil Appeal no. 53 of 2002 at exhibit 61, certified copy of the plaint in Regular Civil Suit no. 21 of 1999 at exhibit 59, written statement at exhibit 60 and the orders at exhibit 5 in the said proceedings, indicate that at no point of time, Haribhau or the other appellants could deny that the suit property is (6) SA. 617.2007 not a joint family property of deceased Vishvanath or his brother Vinayak and Bala. 7] Haribhau as the defendant no.4 did not contest the proceedings of Regular Civil Suit no. 21 of 1999 by any pleadings even though Bala sought relief against him that the sale deed executed by Asarabai in favour of Haribhau is not legal, valid and not binding on him. 8] The contention of the learned counsel for the appellants, that there was no challenge to the sale deed of Haribhau, referred above, leading to formulation of substantial question of law, would not arise in the light of the Regular Civil Suit no. 21 of 1999 and in subsequent suit, Regular Civil Suit 148 of 2004. The slumber demonstrated by the appellant Haribhau in the proceedings could be thanked by him and now he can not agitate to re-open the issue. In the situation, no substantial question of law posed above, would germane. Second Appeal sans merit, dismissed. Civil Application no. 9038 of 2007 also stand dismissed. 9] Writ Petition no. 3884 of 2005 pending between the parties is arising out of finding dated 11.2.2004 in Regular Civil Appeal no. 53 of 2002. The effect of the said finding is the possession of Janabai was established. Janabai naturally was justified in the (7) SA. 617.2007 present proceedings not to seek relief of possession as she already enjoyed the property, she having objected to taking the mutation entry for that purpose, by Haribhau or appellant nos. 2 and 3. Writ Petition also lacks merit, it is dismissed. No costs. Sd/- (K.U. CHANDIWAL, J.) arp