1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD REVIEW APPLICATION NO. 86 OF 2009 IN SECOND APPEAL NO.239 OF 1988 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Shri S.B.Bhapkar Advocate for review applicant. Shri Vivek Bhavthankar Advocate for Respondent No.1. 1. By this review application, applicant seeks modification/review of the judgment and order dated 16.4.2009 passed by this Court in Second Appeal No.239 of 1988 filed by present Respondent No.1 Ganpat against Review applicant and original plaintiff Janabai. 2. Admittedly, present applicant Janabai was the original plaintiff and is wife of Respondent No. 2 Dnyanoba 2 Agarkar was the owner of the suit property. According to present applicant, she entered into agreement with her husband to purchase the said property on 1.8.1973 and accordingly she purchased the said property from her husband on 7.8.1974. Since the applicant-plaintiff Janabai had become owner, she claimed possession of the property on title and accordingly filed the suit against Respondent No.1 Ganpat for possession. 3. The trial court held that the agreement of sale and the sale deed were proved, but the sale was without consideration and, therefore, void and hence suit was dismissed. 4. In the first appeal, the appellate court took a view that the applicant- Janabai had become owner and that the sale is valid and, therefore decreed the suit for possession. Second appeal No.239 of 1988 is filed in this court. 3 5. It is the case of Respondent No.1 Ganpat that pending second appeal, he had purchased the suit property by registered sale deed on 13.1.1992 from Janabai and as such he was entitled to retain possession. It is also stated that original Defendant No.2 Dnyanoba was attesting witness on the said sale- deed executed by Janabai in favour of Ganpat. 6. On 16.4.2009, when second appeal No.239 of 1988 was called out, Advocates of Respondents were not present and Advocate for appellant produced on record the sale deed dated 13.1.1992 and submitted that pending consideration of second appeal he purchased the suit property from review applicant-plaintiff Janabai who was respondent in the second appeal. 7. In view said developments pending second appeal, on 16.4.2009 the said second appeal came to be allowed and disposed of and it is this order which is sought to be reviewed by present 4 applicant. 8. Heard learned counsel for respective parties. Advocate Shri Bhapkar submitted that one Ashok Ganpatrao Agarkar had purchased the suit property from the applicant- Janabai on 17.2.1978 and said Ashok has filed R.C.S. No.92 of 1993 in the court of Civil Judge, Junior Division, Latur which subsequently came to be transferred to the Court of Civil Judge, Junior Division, Renapur and renumbered as R.C.S. No. 6 of 2008. Advocate Shri Bhapkar submitted that Ashok Agarkar was necessary party to the Second appeal and, therefore, without impleading Ashok, second appeal could not have been decided. 9. Advocate Shri Bhapkar further submitted that the sale deed executed by present applicant - plaintiff Janabai in favour of Gapant-respondent No.1 is hit by principle of lis pendence. It is true that the sale deed in favour of Ganpat was executed 5 during pendency of second appeal. Nowhere in the review petition, execution of the said sale deed is denied. All that is stated in paragraph 7 of the review application is : "7. That the appellants/non applicant is disputing the title and ownership of appellant through out in the proceedings. Therefore, the alleged sale deed executed by applicant in favour of non- applicant can not be said to be valid and/or the applicant ought to have withdrawal (withdrawn) the Second Appeal in view of execution of sale deed. " 10. Advocate Shri Bhavthankar for Respondent No.1 submitted that the present applicant-Janabai is playing fraud on his client so also on Ashok Agarkar. In fact, original transaction itself was sham. The sale deed by applicant Janabai in favour of Respondent No.1 Ganpant is nowhere 6 denied. Respondent No.2 Dnyanoba is the husband of Janabai and was also attesting witness on the said sale- deed. 11. Having considered all the submissions advanced before me, I am of the opinion that the suit filed by Ashok Agarkar shall be decided on its own merits. However, at the same time developments those took place during pendency of the second appeal could be taken into consideration and appropriate orders were passed. 12. In view of peculiar facts and circumstances of the case, this is not a case for review. Hence, review application is rejected. Date:09/11/2009 (P.R.BORKAR, J.) pnd/ra86.09