1 sa 599.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 599 OF 2010 Devidas S/o Dhodha Patil .. Appellant Versus 1. Daga S/o Kautik Patil and another .. Respondents Shri P. F. Patni, Advocate for the Appellant. Shri S. P. Shah, Advocate for the Respondent No. 1. The Respondent No. 2 served. CORAM : S. V. GANGAPURWALA, J. DATE : 03RD MAY, 2011. PER COURT : . This is an appeal by the original defendant. The plaintiffs filed a suit for possession and declaration that the sale deed executed in favour of defendant by Bhagirathibai is not binding on them. The Trial Court partly decreed the suit, declaring that the sale deed executed in favour of defendant No. 1 by Bhagirathibai is void to the extent of share of plaintiff. The vacant possession of the house properties were ordered to be given, as there was no document of title in favour of defendant. 2 sa 599.10 The relief for partition was not granted as was not prayed and the Court observed that the plaintiffs can file a suit for partition. 2. Aggrieved by the said judgment, plaintiffs as well as the defendant preferred appeal before the District Court. The District Court dismissed the appeals filed by the respective parties. Aggrieved thereby the defendant has filed present second appeal. 3. Shri Patni, the learned counsel for the appellant contends that the Courts below have discussed about adverse possession, without framing any issue in that regard. The learned counsel further contends that even directions could not have been given by the Trial Court to the plaintiffs to file a suit for partition. The same would not be inconsonance with the provisions of Order 2 Rule 2 of the Civil Procedure Code. The Court by granting such relief could not have taken away right accrued by virtue of Order 2 Rule 2. The learned counsel further contends that both the Courts have come to the conclusion that the sale deed is for legal necessity and so plaintiffs and Bhagirathibai could have been taken as one unit and as such, said sale deed would have been binding on the plaintiff also. 3 sa 599.10 4. Per contra, Shri Shah, the learned counsel for respondents submitted that the Court could have invoked its power U/O 7 Rule 7 of the Civil Procedure Code and granted the relief of declaration, however, there is no bar for the plaintiffs to institute a suit for partition after the judgment is delivered by the Court. The learned counsel further contends that there was no pleading on the part of the defendants about adverse possession, so in absence of any pleading no question arises of framing any issue. The sale deed of Bhagirathibai may be for legal necessity for her purpose, the same would not bind the plaintiffs or the shares of plaintiffs. 5. With the assistance of the learned counsel I have gone through the judgments. The defendant has not pleaded about adverse possession. Therefore no question arises of framing any issue regarding adverse possession. The Court has discussed the arguments advanced by the parties and has also come to the conclusion about the rights of the parties. It is not disputed that Sitaram was original owner of the property. He was survived by Sonabai, Dhanabai and Bhoma. Bhagirathibai was wife of Bhoma from whom the defendant has purchased the agricultural land. The said sale was de-hors the right of plaintiffs. The 4 sa 599.10 plaintiffs could not be bound by that. The defendant has not pleaded nor proved dispossession of plaintiff or adverse possession of Bhagirathibai. In such circumstances, there was no impediment for the Court to pass the decree, regarding the bar of Order 2 Rule 2 as is canvased by the learned counsel, whether bar of Order 2 Rule 2 will apply to a subsequent suit depends upon various factors. Such as cause of action, the nature of relief claimed, the availability to the party to claim said relief and so on. What would be the effect of the order passed by the Court, in the present suit and whether the same would be relevant in the subsequent suit are the issues which if at all subsequent suit is filed and defence is raised, to be considered by the Court. At this stage one cannot come to the conclusion that if any suit is filed subsequently, the same would be barred by Order 2 Rule 2. 6. The second appeal does not involve any substantial question of law, as such is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Mayl 11