1 SA.422/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 422 OF 2008 WITH CIVL APPLICATION NO. 1074 OF 2008 IN SECOND APPEAL NO. 422 OF 2008 Smt. Savitribai Abaji Kale through P.A. holder) haridas Abaji Kale & Ors. ..Appellants. Vs. Rajendra Dashrath Waghmode since deceased through L.H. Sakhubai Raju Waghmode & Ors. ....Respondents. ..... Mr. Sugandh Deshmukh, for the Appellants. Mr. G.S. Godbole, Sr.Adv. i/b V.Y. Jadhav, for Respondent Nos.1A to 1D and 2 to 4. .... CORAM: S.C. DHARMADHIKARI, J. DATE : 23rd JULY, 2010. P.C. 1] The only substantial question of law according to Shri Deshmukh, appearing on behalf of the Appellants in this appeal, arises on account of the order and decree of the Trial Court which declares that the original Plaintiffs to the suit, and particularly Plaintiff Nos.1 and 4 are entitled to 4/5th share in the suit properties, whereas Defendant No.1-Dashrath is entitled to 1/5th share in the 2 SA.422/2010 property. The suit property is described in paragraph 1 of the plaint. 2] Shri Deshmukh is appearing for the Appellant who is original Defendant No.2 and a purchaser of the immovable property under sale deed (Exhibit ‘108’) which has been executed by the original Defendant No.1-Dashrath in his favour allegedly for valuable consideration. Therefore, if not anything, the share of Defendant No.1-Dashrath legitimately should have been confirmed by the Lower Appellate Court, at least to the above extent. Instead, the Lower Appellate Court has proceeded to dismiss the appeal in its entirety. The decree of the Lower Appellate Court is vitiated because it does not maintain the direction of the Trial Court in so far as the share of vendor-Dashrath to the extent of 1/5thshare in the suit properties is the submission. Hence, according to the learned counsel this is a substantial question of law. 3] Shri Godbole appearing on behalf of original Plaintiffs- Respondent Nos.1 and 2 submits that the appeal preferred to challenge the decree of the Trial Court was dismissed against the vendor of the Appellant viz. Dashrath-original Defendant No.1 on 17.11.2006. The Appellant- Savitribai who is the original Defendant 3 SA.422/2010 No.2 did not take any steps to revive this appeal. Further, the Trial Court has given a finding of fact that the sale in favour of the present Appellant was in the teeth of the order of injunction which restrained Dashrath-original Defendant No.1 from alienating and/or transferring the suit property during the pendency of the suit. Admittedly, the sale deed was executed during the pendency of the suit and when the injunction was in force. Such sale does not confer any right in favour of the Appellant. Further, the sale has been held to be vitiated for want of legal necessity and there is further finding that of fact that the Appellant is not a bonafide purchaser for value without notice. 4] There is some substance in these contentions of Shri Godbole. With the assistance of the learned counsel for the parties, I have perused the judgment under challenge, I am satisfied that despite the persuasive efforts of Shri Deshmukh, it will not be possible to grant any relief to the Appellant-Original Defendant No.2. The Lower Appellate Court is right in dismissing the Appeal of the Appellant in entirety after confirming the above findings of the fact of the Trial Court 5] The point nos.2 and 3 framed and answered in the Judgment of the Lower Appellate Court would clearly show that the 4 SA.422/2010 Lower Appellate Court has gone through the oral and documentary evidence and on an appraisal and appreciation of the same confirmed the Trial Court’s findings. That the Appellant cannot be said to be bonafide purchaser of the suit property for value without notice, and that the sale deed was not executed for legal necessity. These findings are against the original Defendant No.1- Dashrath Vendor of the Appellant-purchaser before me. Dashrath had accepted them. When the Appellant does not take any steps to revive the Appeal as against Dashrath when he was very much party thereto, then, it cannot be said that the Lower Appellate Court has committed any error in not maintaining the decree of the Trial Court. The Appellant is not entitled to the share of Dashrath as the sale is held to be vitiated. The sale was in the teeth of the order of injunction. The sale breaches the said order, and therefore, Appellant cannot claim any relief on that basis. 6] In the peculiar facts of this case, the concurrent finding that a sale in contravention of the order of Injunction passes no valid and legal title in favour of the Appellant requires no inhterference. Thus, there is no substantial question of law. The Second Appeal fails and is dismissed accordingly. 5 SA.422/2010 7] For the aforementioned reasons, even the other submission of Shri Deshmukh that the Appellant did not purchase undivided share in the suit property but a definite share that was due to his vendor-Dashrath a previous partition, must fail. Dashrath- original Defendant No.1 does not state anything of this kind in the Court below. Dashrath not filed any appeal against the decree of the Trial Court wherein 1/5th share has been granted to them. 8] In all fairness, Shri Deshmukh states that when the matter was placed before this Court earlier inadvertently attention of the Court was not invited to the plaint filed in the Trial Court and amended subsequently. That includes all properties. If the amendment had been brought to the notice of this Court, possibly, the prima facie, view expressed earlier would not have been taken. 9] For the abovementioned reasons, the Second Appeal is dismissed. No costs. S.C. DHARMADHIKARI, J.