1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal NO. 149/2010 (Suryabhan Janba Chambhare & others VERSUS Sumitra Eknath Rode) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mrs. Neeta Jog, counsel for the appellants. Shri K.R. Lule, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 8, 2010 . Heard. One Janba had filed a suit against his three sons, the present appellants, for permanent injunction restraining the appellants from disturbing the possession of Janba over the suit property. It was the case of Janba that he was the absolute owner of the suit property. The appellants- defendants filed a written statement and pleaded that Janba was not the absolute owner of the suit property as he had purchased the suit property from the funds he received from selling the ancestral property which fell in his hands. The defendants-appellants, therefore, pleaded that they also had a share in the suit property. After Janba tendered his oral evidence in the case, Janba expired during the pendency of the suit. 2 The present respondent, who claims to be the owner of the suit property in pursuance of a will executed by Janba in her favour, sought the permission of the Court for joining her as plaintiff. The permission was granted. Respondent Sumitra then claimed possession of the suit property on the basis of her title to the suit property in view of the will executed by Janba in her favour. The defendants denied the execution and the validity of the will allegedly executed by Janba. The trial and the first appellate Court in the suit, which was previously filed by Janba only for a permanent injunction and which was converted into a suit for possession by Sau.Sumitra, one of the legal heirs of Janba, on the basis of title, decreed the suit of respondent Sumitra and directed the defendants to handover the possession of the suit property to plaintiff Sumitra. The Courts also directed an enquiry into the mesne profits from the date of the institution of the suit till the possession was delivered by the defendants to plaintiff Sumitra. The judgment passed by the trial Court was upheld by the first appellate Court. In the aforesaid facts and circumstances of the case, the following substantial question of law arise for determination in this second appeal.. 3 I) Whether it was necessary for the Courts to frame an issue whether the property was the absolute and self acquired property of Janba or whether the suit property was jointly owned by Janba and his sons, as claimed by the defendants ? II) Whether the trial Court in a suit filed by Sumitra for possession on the basis of title acquired by her in pursuance of the will could have directed an enquiry into mesne profits from the date of institutionof the suit when Sumitra could have become the owner of the suit property, at the most from the death of Janba, in pursuance of the will ? III) Whether the fourth son of Janba by name Rajaram was a necessary party to the suit ? C.A.S. NO. 303/2010. Heard. Perused the judgment passed by the trial and the appellate Court. The second appeal is admitted on substantial questions of law. It is not in dispute that the appellants are in possession of the suit property as respondent Sumitra had prayed for possession of the suit property from the present appellants. Since the second appeal is admitted on the substantial questions of law, the judgment and decree passed by the first appellate Court is stayed during the pendency of the second appeal only on the condition that the appellants furnish solvent surety/security to the satisfaction of the trial 4 Court to the tune of Rs.7,50,000/- within a period of six weeks. The civil application is allowed in the aforesaid terms and disposed of. JUDGE APTE