( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 35 OF 2010 Somnath s/o. Panchaksharyappa Girwalkar .. Appellant Versus Mitrawadanabai w/o. Ramlingappa and Ors. .. Respondents Shri S.S. Deo, Advocate for the appellant. Shri A.P. Yenegure, Advocate for respondent Nos. 6 to 9. CORAM : P.R. BORKAR,J. DATED : 14.06.2010 P.C. :- 1. Heard Adv. Shri S.S. Deo for the appellant and Adv. Shri A.P. Yenegure for respondent Nos. 6 to 9. 2. Briefly stated facts giving rise to this appeal are as follows:- . The appellant along with one Mahadappa @ Trimbakappa Girwalkar had filed Regular Civil Suit No. 161 of 1973 in the Court of Civil Judge, Junior Division, Latur, ( 2 ) against respondent Nos. 1 and 2 claiming possession of the suit-land on the ground that the lands were owned by Mahadappa and the appellant was in its permissive possession as licensee and defendant Mitrawandanabai and Ramlingappa falsely claimed to be tenant. So, the suit was for possession. The issue of tenancy was fought up to Apex Court and ultimately it was held that defendant Nos. 1 and 2 were not tenant and the suit for possession was allowed. 3. During pendency of Regular Civil Suit No. 171 of 1973, plaintiff No. 2 Mahadappa died in about 1975 and none of his legal representatives were brought on record and the suit proceeded. The suit was shown to be abated against Mahadappa. Ultimately, suit bearing Regular Civil Suit No. 161 of 1973 was decreed by the Civil Judge, Junior Division, Latur, on 06.04.2001. Thereafter, the appellant/decree holder who was original plaintiff No.1 filed Regular Darkhast No. 55 of 2001 for execution of the decree and for issuance of warrant of possession. Accordingly, warrant of possession was issued. However, present respondent Nos. 6,7, legal representatives of respondent No. 8 and respondent No. 9 obstructed execution proceeding. Application Exh.20 was ( 3 ) filed by present appellant/decree holder praying for removal of obstruction by respondent Nos. 6 to 9 with the help of police aid. The Civil Judge, Junior Division, Latur, by order dated 03.03.2007 dismissed the Darkhast Proceeding and accepted the contention raised in Exh.24 by respondent No. 6 to 9 that they are already put in to possession and therefore the possession warrant be recalled and execution petition be dismissed. The appeal as against the same bearing Regular Civil Appeal No. 64 of 2007 was dismissed by the District Judge-1, Latur on 30.10.2009. Being aggrieved thereby, this appeal is filed. 4. The basic question that arises for my consideration is as under :- “Whether the legal representatives of original plaintiff No. 2 Mahadappa have right to resist the possession warrant issued at the instance of original plaintiff No.1, who in the plaint was shown to be licensee of Mahadappa? 5. It is worth noting that Mahadappa died pending the original suit and his legal representatives were not brought ( 4 ) on record. The suit abated so far as Mahadappa is concerned. It was proceeded with by only plaintiff No.1. It has come in evidence that at the time of Gudipadwa of 1993, respondent Nos. 6 to 9 were put into possession by original defendant Nos. 1 and 2. 6. Adv. Shri Deo for the appellant pointed out to me certain observations made by the Supreme Court, which are produced in para No. 2 (C) and Ground No. III of the Appeal Memo. It remains undisputed at this stage that Mahadappa was original owner and plaintiff No.1 was his licencee. The suit was filed for possession both by the present appellant and Mahadappa. Now it is say of respondent Nos. 6 to 9 that as legal representatives of Mahadappa, they have been put into possession of the property. In the circumstances, there is nothing which remains to be executed between original plaintiffs and original defendant Nos. 1 and 2. If between plaintiff No.1 and legal representatives of plaintiff No. 2 Mahadappa, there is any claim of exclusive possession, the same will have to be decided separately in an independent proceeding. The same was not subject matter of the suit as admitted before the Court and the same could not be also ( 5 ) subject matter of execution proceedings. In the circumstances, this Second Appeal has no merit. There is no substantial question of law in the Second Appeal. In the result, the Second Appeal is dismissed in limine. [P.R. BORKAR,J.] snk/2010/JUN10/sa35.10