(1) SA. 622.1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 622 OF 1992 Narhari Shivling Chavanda, Aged : 34 years, Occu.: Agri. R/o Jawala (Bk.) Tq. and Dist. Latur .. Appellant VERSUS Sidling Sangappa Bhujbal and ors. .. Respondents Mr. Satyajit S. Bora, Advocate h/f. Mr. S.C. Borad, Advocate for the appellant Mr. N.P. Patil, Advocate for the respondent nos. 1 to 5 Respondent no.6 deleted as per Court's order ... CORAM : A.V. NIRGUDE, J. DATED : 25TH FEBRUARY, 2010 P.C.:- 1] Heard. This Second Appeal is filed against the concurrent findings of the Courts below that the appellant could not prove that the alienation of the suit property in his favour, was valid and made for satisfying a 'legal necessity of joint Hindu family'. 2] The learned Advocate appearing for the appellant contended that the plaint had inherent (2) SA. 622.1992 defect which would vitiate the impugned decree. He pointed out that the respondents-original plaintiffs did not seek declaration that the sale deed which their father executed during his lifetime, was bad for want of legal necessity and was not binding on them. He rightly demonstrated that the suit was filed only for partition and for possession of the suit property. The cause of action for the suit was as under:- . The respondents/plaintiffs are brothers and their mother. The said that they were Hindus and formed a joint Hindu family along with Sangappa, the father of the respondent nos. 1 to 4 and husband of the respondent no.5. As the Karta of the joint family, Sangappa was in control of the suit property but due to addiction and vices, Sangappa sold the suit land to the appellant. They said that since the transaction was not for satisfying 'a legal necessity of the joint Hindu family', the transaction would not bind them or would not affect their share in the property. They further said that they would be entitled to 5/6th share in the suit property. (They left their father's 1/6th share to the appellant the purchaser and sought partition of the suit land). As said above, in this suit the appellant could not prove the legal necessity for the transaction. In a case like this there indeed was no need to seek a declaration that the sale was bad for want of legal necessity. The respondents- (3) SA. 622.1992 plaintiffs specifically asserted in the plaint that the transaction was bad for want of legal necessity and this was the main bone of contention between the parties. So there is hardly any substance in the submission of the learned Advocate appearing for the appellant on this point. The only objection that can be taken and should be taken is in respect of the operative part of the judgment of the first appeal Court. 3] Even the learned Advocate appearing for the respondents joined the issue with the appellants. Instead of confirming the decree passed by the trial Court directing the partition of the suit property as sought by the respondents-plaintiffs, the learned Judge of the first appeal Court unnecessarily directed them to jointly possess of the suit land along with the appellant and then suggested to the appellant that he should file a separate suit for partition. This obviously was an error on the part of the learned Judge of the first appeal Court. This error is required to be corrected. 4] The operative part of the judgment of the first appeal Court shall stand replaced by the operative part of the judgment of the trial Court. It is however, made clear that the appellant-defendant shall approach the Collector for effecting equitable partition of the suit land. The appellant shall (4) SA. 622.1992 approach the Collector within 4 weeks from today and on such request, the learned Collector shall effect the partition, as early as possible, within six months. Second Appeal stands disposed of accordingly. Sd/ (A.V. NIRGUDE, J.) arp