1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.616 OF 2010. Shankar S/o Lalu Awdhute ... Appellant. Versus Shantabai W/o Digambar Kuntewad and others ... Respondents. ... Mr.H.I.Pathan, advocate for the Appellant. ... CORAM : S.V.GANGAPURWALA,J. Date : 21.09.2010. PER COURT 1. The present Respondent Nos.1 to 3 filed suit for partition and separate possession in respect of the suit property bearing Gat No.20, admeasuring 2 hectares 3 Ares. It is the case of the plaintiffs that the suit property was 2 initially owned by Rama and his son Vithal. Vithal died in the year 1974. Rama died in the year 1971. Thereafter, the present plaintiffs and defendant No.1 succeeded to the property. Some part of the property was sold by the defendant No.1. Now 2 hectares 3 Ares land remained. It is the case of the plaintiffs that defendant No.2 is in illegal occupation of the property. The plaintiffs have sought relief of partition and separate possession claiming 1/4th share each in the suit property. 2. The defendants were served. The defendant No.2 initially appeared in the matter in person and sought time to engage a lawyer. Thereafter, the defendant No.2 engaged the lawyer but subsequently no written statement was filed. The defendant No.1 also did not file any written statement. After recording the evidence of the plaintiffs, the trial Court decreed the suit of the plaintiffs. 3. The defendant No.2 preferred an appeal bearing RCA No.36/2007. The appellant had prayed 3 for remand, amongst other contentions. The appellate Court dismissed the appeal. Aggrieved by the same, the defendant No.2 had filed the present appeal. 4. Mr.Pathan, learned counsel for the appellant canvassed following propositions : (i) No proper opportunity was given to the defendant No.2 to contest the matter. He was not informed by his advocate and as such the written statement could not be filed and he could not prosecute the matter. Opportunity deserves to be given to the defendant No.2 by remanding the matter. (ii) The possession of the defendant No.2 was not unauthorised but was on the basis of the agreement of sale executed by defendant No.1 in favour of defendant No.2 for legal necessity. The Courts below have not taken into consideration the concept of legal necessity. (iii) The suit was collusive suit between the 4 plaintiffs and the defendant No.1. As the defendant No.1 was to look after the case, the defendant No.2 did not participate. 5. It is a trite law that an agreement of sale does not create any interest in the property. As such, merely on the basis of an agreement of sale, the defendant No.2 could not have claimed any interest in the property except his right to purchase the property. The agreement as claimed by the defendant No.2 is of the year 1994. The defendant No.2 did not claim specific performance of contract nor claimed protection of his possession on the basis of part performance of contract. When the agreement of sale itself does not create any interest in the property, the defendant No.2 would not have any legal right to contest the case. 6. Moreover, it is not disputed that the plaintiffs have a share in the property. The only case of defendant No.2 was that the defendant No.1 had agreed to sell the said property to defendant No.2 for legal necessity. 5 The said legal necessity is not proved as there is no written statement nor any evidence on record. The defendant No.2 has only put a blame on the advocate and the defendant No.1 but has nowhere stated as to what prevented him for prosecuting the matter. 7. As only 2 hectares 3 Ares land has remained, the defendant No.1 could not have disposed of the whole property. The plaintiffs are the married daughters. The defendant No.1 at the most could deal with her share. The Courts have held that the defendant No.1 had 1/4th share. If in law, the defendant No.2 can exercise his right against the defendant No.1 to the extent of her share, the defendant No.2 can take up proceedings to that extent but can not restrict the right of the plaintiffs on the basis of the said agreement of sale. 8. In light of the above, no substantial question of law is involved. As such the Second Appeal is dismissed with no order as to costs. 6 9. In view of dismissal of Second Appeal, the Civil Application does not survive and the same is accordingly disposed of. (S.V.GANGAPURWALA,J.) asp/office/sa616.10