1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 1468 OF 2005 Pushpabai Baburao Puri (deceased through LRs) .. APPELLANT VERSUS Mahadu s/o SopanHolkar & another .. RESPONDENTS Shri Swapnil Rathi, Advocate for the appellant. Shri C.R. Bharaswadkar, Advocate for respondent no.2. ===== CORAM : R. M. BORDE, J. DATE : 2 nd September, 2009 PER COURT : 1 This is an appeal by original plaintiff raising exception to the judgment and decree passed by the Additional District Judge, Parbhani on 19-7-2004 in Regular Civil Appeal no.58/2000 whereby while allowing the appeal the first appellate court was pleased to set aside the judgment passed by the Civil Judge, Jr.Dn., Gangakhed on 5-5-2000 in Regular Civil Suit no. 242/1996. 2 Appellant / original plaintiff instituted suit claiming decree of declaration of ownership and perpetual injunction in respect of municipal 2 house no. 66 situate at village Dahikhed. Plaintiff also seeks declaration that the sale-deed executed on 30-8-1996 by defendant no. 1 in favour of defendant no. 2 be declared as null and void. Plaintiff comes to the court with a specific case that house n o. 66 has been converted to house no. 5/72 and 5/73. Plaintiff became entitled to the suit property on the strength of sale-deed executed by her deceased father Balabhau in her favour on 25-5-1975. According to plaintiff, defendant no. 2 has purchased part of the property and as such he is causing interference in her possession. 3 Defendants appeared and controverted the contentions raised by plaintiff. According to defendant no. 2, house 66 (old) is not converted to house no. 5/72 and 5/73 but suit house is converted to only house no. 5/72. Defendant no. 2 on the contrary purchased house no. 5/73 from his predecessor in title, defendant no. 1 Sopan. Said property was purchased by father of Sopan from one Sarubai and Sarubai had become entitled to the property as successor of Rambhau, original owner. Thus, case of the defendant is that he is entitled to retain house no. 5/73 on the basis of sale- deed got executed by him from defendant no.1. 4 Trial court recorded specific finding that house n o. 66 (old) claimed 3 by plaintiff infact is converted into house no. 5/72 and is not inclusive of house no. 5/73 as contended by plaintiff. Trial court, however, granted decree in favour of plaintiff thereby declaring the sale-deed executed by defendant no. 1 in favour of defendant no. 2 as illegal. Defendant is also permanently restrained from causing interference on the strength of sale- deed. Defendant no. 2 raised exception to the judgment passed by the trial court by filing appeal which came to be heard and disposed of by the Additional District Judge, Parbhani who was pleased to allow the same. 5 I have perused the judgment recorded by the first appellate court. Case put up by plaintiff that she became entitled to municipal house no. 66 which is inclusive of house no. 5/73 has been specifically turned down by the trial court. First appellate court was therefore justified in setting aside decree passed by the trial court. Case put up by plaintiff in respect of her entitlement to the house no. 5/73 has been turned down by both the courts below. Therefore, there was no justification for passing any decree in favour of the plaintiff. Sale-deed executed in favour of plaintiff is in respect of distinct property and as such, no such declaration was necessary in that behalf. Reasons recorded by the first appellate court are proper and do not call for any interference. No substantial question of law arises for 4 consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa1468.05.odt