1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 34/2010 (Purushottam Manikrao Nagpure VERSUS Natthu Ranaji Pande & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.C. Dharmadhikari & Shri A.M. Quazi, counsel for the appellant. Shri V.T. Deshpande & Shri M.D. Lakhey, counsel for the R-1. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 12, 2010 . Heard. The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration that he was the owner of the suit house by virtue of the sale-deed dated 29.05.1985 and that the sale-deed executed by Laxmikant in favour of defendant on 08.01.1987 was null and void and the defendants did not get any right over the suit property by virtue of the sale-deed. The plaintiff further sought possession of the suit property from the defendants. It is not in dispute that the property originally belonged to one Krushnarao Deshpande. Krushnarao had two sons viz. Dattatraya and Laxmikant. Both the Courts had recorded a finding that there was a partition of the properties left behind by Krushnarao between Dattatraya and Laxmikant. 2 The defendants had claimed ownership over the property purchased by them by the sale-deed dated 08.01.1987 and by filing a cross-objection prayed that the sale-deed executed in favour of the plaintiff by Dattatraya on 29.05.1985 be declared as null and void. The trial Court on an appreciation of the evidence on record, held that the plaintiff was the owner of the suit house by virtue of the sale-deed dated 29.05.1985 and the sale-deed executed by Laxmikant in favour of defendants on 08.01.1987 was null and void. The trial Court also held that the correction deeds were bona fide executed. The trial Court granted a declaration and permanent injunction in favour of the plaintiff and dismissed the counter claim of the defendants. The first appellate Court on an appreciation of the evidence on record, allowed the appeal filed by the defendants and set aside the judgment and decree passed by the trial Court in favour of the plaintiff. The first appellate Court also dismissed the counter claim filed by the defendants. It is not in dispute that both the parties claimed ownership over at least a part of the property which is included in the sale-deed dated 29.05.1985 as also the sale- 3 deed dated 08.01.1987. In such circumstances, in case the suit of the plaintiff was liable to be dismissed by the first appellate Court, it was necessary for the first appellate Court to have allowed the counter claim filed by the defendants at least to a certain extent of the property. However, this was not done and though the first appellate Court upheld the factum of partition between Dattatraya and Laxmikant, it held in paragraph 22 of the judgment that the plaintiff may have been the owner of only 70 Feet X 40 Feet of the land which was sold to the plaintiff by the sale-deed dated 29.05.1985 and could not have included the portion which was in possession of the defendants as tenants, by virtue of the correction deeds. It is necessary to note that the correction deeds are not challenged by the defendants in the counter claim and the first appellate Court has also upheld in the operative part of the order in consonance with the reasons recorded in paragraph 22 of the judgment that the plaintiff was at least the owner of the suit house which was initially purchased by the sale-deed dated 29.05.1985. The first appellate Court without deciding the title of the parties to the suit has observed in paragraph 26 of the judgment that both the parties had claimed title over the properties of each other by 4 suppressing the material facts and they do not deserve any relief. The approach of the first appellate Court in deciding the first appeal is not in accordance with law. Hence, in the facts and circumstances of the case, the following substantial questions of law arise for consideration in this second appeal. I) Whether the first appellate Court had committed an anomaly by refusing to decree the suit of the plaintiff in terms of the first part of prayer clause (bb) of the plaint and also dismissing the counter claim filed by the defendants ? II) Whether the entire suit of the plaintiff could have been dismissed by reversing the judgment passed by the trial Court on 21.03.2005 in spite of the reasons and finding recorded by the first appellate Court in paragraph 22 of the judgment ? Since the Record & Proceedings have been secured the hearing of the appeal is expedited. Learned counsel Shri V.T. Deshpande and Shri M.D. Lakhey waives notice of hearing on behalf of the respondents. 5 C.A.S. NO.292/2010. Heard. Perused the judgments passed by the trial and the appellate Court. The second appeal is admitted on the substantial questions of law. In the facts and circumstances of the case, it would be necessary to direct the parties to maintain status quo as regards possession of the property and the nature of the property. The parties are, therefore, directed to maintain status quo as regards possession over the suit property and are also restrained from alienating or creating any third party interest over the suit property and from making the construction/demolition during the pendency of the appeal. The civil application is allowed in the aforesaid terms and disposed of. JUDGE APTE