{1} IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.85 OF 2007 [WITH CA No.7385/05] Arvind @ Krishna Hariharrao Deshmukh R/o Ardhapur Dist. Nanded. APPELLANT VERSUS 01- Tanyabai @Shardabai W/o Shamrao Deshpande deceased No L.Rs.taken on record. 02- Lahanyabai @ Sulochanabai w/o Chandidasrao Deshmukh, R/o Korta Tq. Vasmath Dist. Parbhani. 03- Prashan Narayan w/o Prabhu Deshmukh R/o Ardhapur Dist. Nanded. 04- Prabhu @ Ramchandra s/o Hariharrao Deshmukh R/o Kordha Tq. Ardhapur dist. Nanded. 05- Gangabai d/o Malhari Lokhande R/o Ardhapur Dist. Nanded. RESPONDENTS *** Shri G.A.Gadhe, advocate holding for Shri P.R.Katneshwarkar, advocate for appellant Miss M.B.Vaishnav, advocate holding for Shri P.V.Mandlik, advocate for respondent no.2. *** Coram : P.R.BORKAR, J. Date: 17th June 2009. {2} ORAL JUDGMENT: 01- The appellant is original defendant no.3. The original suit was for possession of the property from defendant no.4. The trial Court dismissed the suit. As against that RCA No.22/2001 was filed in District Court, Nanded and the same came to be decided by the 3rd Adhoc Additional District Judge, Nanded on 24/12/2004. The final order passed by the learned judge is as follows; “1) Appeal allowed without costs. 2) Suit shall stand decreed in terms of compromise dated 18/2/1980 Ex.75. Between plaintiff & deft. No.4. 3) Plaintiffs and defendant no.4 shall continue to be in possession of property in their respective possession in terms of said compromise. 4) Defendant no.3 is hereby directed to hand over peaceful and vacant possession of the part of suit property in his possession belonging to late Dajisaheb to the person entitled for possession in terms of compromise dated 18/2/1980 Ex.75. 5) Inquiry in respect of mesne profit for property in possession of defendant no.3 be made as per Order-XX Rule 12 of Civil Procedure Code and defendant no.3 shall pay said mesne profit to the party entitled for possession of the land in terms of compromise dated 18/2/1980 Exh.75. 6) Copy of said compromise pursis dated 18/2/1980 Ex.75 shall form part of Decree. 7) Decree be drawn accordingly.” 02- The advocate of the appellant stated that the appellant / {3} defendant no.3 was not party to the compromise and in spite of same, as a result of compromise between plaintiff and the defendant no.4, defendant no. 3 was directed to hand over possession and there was also direction to pay mesne profit. Learned advocate states that this order is not on merits as para no.2 of the order discloses that it is necessarily in terms of compromise. The last paragraph of the judgment makes it clear that compromise was necessarily between the plaintiff and the defendant no.4. It was also submitted that defendant no.3 was in possession of some portion of the property which was forcibly taken after demise of Dajisahabe. It is also stated that defendant no.3 has not put any defence in respect of his possession. But that is no reason to allow the appeal in terms of compromise when defendant no.3 was not party to it. It would have been another thing if such direction regarding possession and mesne profit had been given on merits. 03- In this view of the matter, the appeal is finally heard at the stage of admission with consent of parties. The appeal raises question “whether the decree passed by 3rd Adhoc Additional District Judge, Nanded on 24/12/2004 is sustainable in law?” And obviously the answer of the same is in negative as the defendant no.3 was not party to the compromise and the decree was passed in terms of compromise between the plaintiff and defendant no.4. 04- In this view of the matter, the Second Appeal is partly allowed. The judgment and decree passed by the 3rd Adhoc Additional District Judge, Nanded on 24/12/2004 is hereby set aside. The matter is remanded back to District Court, Nanded with direction that RCA No.22/2001 be taken on file and it be decided afresh according to law. {4} 05- Advocate for appellant / original defendant no.3 and advocate for respondent no.2 who is original plaintiff no.2 agreed to appear before the District Court, Nanded on 15th July 2009. 06- The District Court Nanded to issue notices to other parties of the Appeal. 07- Registry to inform this order to District Court, Nanded forthwith. 08- The Civil Application NO.7385/2005 does not survive in view of the disposal of the appeal. [P.R.BORKAR] JUDGE. /mda/0609/sa85.07