1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 395 OF 2009 Shantabai Krishnarao Deshpande (deceased through LRs) .. APPELLANTS VERSUS Ashok s/o Krishnarao Deshpande & others .. RESPONDENTS Shri D.P. Bakshi, Advocate for the appellants. Smt. Rakh, Advocate for respondent nos. 2 to 5. ===== CORAM : R. M. BORDE, J. DATE : 11 th August, 2009. PER COURT : 1 Unsuccessful plaintiff who has failed in both the courts below has approached this court by presenting the instant second appeal. 2 Plaintiff instituted Regular Civil Suit no. 295/1991 claiming possession of land gat no. 298 to the extent of 12 acres. Defendant no. 1 is son of plaintiff. According to plaintiff, the joint family property belongs to the family of Krishnarao Deshpande. The land in question was allotted to the plaintiff in partition arrived at between plaintiff and defendant no. 1. There was suit 2 instituted by plaintiff claiming partition which came to be decreed in terms of compromise and on the basis of compromise decree arrived at in Regular Civil Suit no.69/1980, plaintiff is claiming entitlement to the property. It is the contention of the plaintiff that the sale-deed executed by defendant no. 1 in favour of other defendants is illegal and he has no entitlement to alienate the property. Defendant no. 1 although was duly served did not appear in the suit and remained absent. Defendant nos. 2 to 5 controverted the contentions raised by the plaintiff. It is the contention of the defendants that decree passed in Regular Civil Suit no. 69/1980 is collusive. Infact there is no partition as alleged by plaintiff and it is also denied that the suit land was allotted to the plaintiff in said partition. It is further contention of the defendants that defendant no. 1 has alienated the property in their favour for meeting family needs and the other members of the family of Krishnarao have supported the transaction. Defendants claim that they are the bonafide purchasers for value without notice of right, title or entitlement of the plaintiff. 3 Trial court after receiving evidence lead by the parties came to the conclusion that plaintiff has failed to establish the factum of partition between herself and defendant no. 1 and allotment of suit land in 3 accordance with the decree of partition arrived at between them. In this view of the matter, trial court dismissed the suit presented by plaintiff. Judgment and decree passed by the trial court was subjected to appeal at the instance of plaintiff. However, appellate court also concurred with the findings recorded by the trial court and dismissed the appeal. 4 I have heard the arguments advanced by the learned counsel. It appears on perusal of the judgments that admittedly the property is owned by the family of Krishnarao. Krishnarao, husband of plaintiff was alive at the time of institution of the suit. There are also other sons of Krishnarao who are also entitled to have share in the property. Alleged compromise decree is passed in a suit instituted by the plaintiff against defendant no. 1alone. Contention raised by the plaintiff in the absence of other share holders who h ave entitlement to the family property cannot be accepted. Moreover, there is no evidence to arrive at conclusion that there was actual partition and separation of share in terms of compromise decree passed in Regular Civil Suit no. 64/1990. Decree in respect of partition needs to be registered. There is no evidence that such a decree was registered. The courts below therefore were justified in turning down the claim of the plaintiff more specifically when the other sharers in the property including Karta of the 4 family were not parties to the alleged compromise deed on which heavy reliance is placed. I do not find any infirmity in the reasons recorded by the courts below. There is no substance in the appeal. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 5 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa395.09.odt