1 S.A.No.156.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 156 OF 2006 Rudrappa S/o Nagappa Tanawade and others ... Appellants V E R S U S Vinayak S/o Dattopant Chavan Died through his Legal Representatives and others ... Respondents WITH CIVIL APPLICATION NO.2066 OF 2006 IN SECOND APPEAL NO. 156 OF 2006 Rudrappa S/o Nagappa Tanawade and others ... Appellants V E R S U S Vinayak S/o Dattopant Chavan Died through his Legal Representatives and others ... Respondents ... Mr. M.A.Khandharkar,Advocate for Appellants Mr. S.M.Vibhute,Advocate holding for Mr. P.P.Chavan for respondent No.1/A & 1/B Respondent Nos. 2-(a),2-(b),2-(c),2-(d),2-(e),2- (f),2-(g),2-(h)and 2(i) served Absent Respondent NO.2(J) died. CORAM : A.V. NIRGUDE, J. DATED : 11TH MARCH, 2010 ORAL ORDER : 1] This Second Appeal is challenging the judgment and decree dated 29th November,2005 passed by the learned Additional District Judge Umarga in 2 S.A.No.156.06 Regular Civil Appeal No. 54 of 2001, arising out of the Judgment and decree passed in Regular Civil Suit No. 125 of 1989. 2] The Respondent Nos. 1 to 3 were admittedly owners of the suit house. It is the case of the original Plaintiff/ respondent No.1-Vinayak that, the appellants No.1 to 3 agreed to sell the house to him by executing agreement for sell on 28th June, 1978. On 17th July,1978 the appellant No.4 Sheshrao filed a suit against the appellants No.1 to 3 as well as original respondent No.1 Vinayak and it was his case that he was in peaceful possession of the part of the suit house and has perfected his title by adverse possession and that the appellant Nos. 1 to 3 and the original respondent No.1 Vinayak should not disturb his possession. The Appellant Nos. 1 to 3 and the original plaintiff-Respondent No.1 Vinayak opposed the suit by filing written statement. Obviously, the respondent No.1 Vinayak reiterated his case that he agreed to purchase the entire house by suit agreement in 1978 and the appellant No.4 was in permissive possession etc. On 4th April, 1981 the appellant Nos. 1 to 3 on one hand and the appellant No.4 Sheshrao on the other, recorded compromise In that suit and appellant No.4 allowed the suit to get dismissed against the original respondent No.1 Vinayak. Sensing collusion between them, the original plaintiff-respondent No.1 Vinayak filed suit Regular Civil Suit No. 125 3 S.A.No.156.06 of 1981 for specific Performance of the agreement on 28th June 1978 against the appellant Nos 1 to 3 as well against the appellant No.4 Sheshrao. He again said that, he was ready and willing to perform his part of contract and that the appellant Nos 1 to 3 by their conduct showed disinclination to abide by their part of contract. . He further said that the compromise recorded in the earlier suit was sham and fraudulent and not binding on him and that he was entitled to not only for specific performance of the contract but also to the possession. It was now, the appellants turn to resist the suit. The appellant Nos 1 to 3 denied the entire case of the original respondent No.1, whereas the appellant no.4 stick up to his case of adverse possession etc. The trial Court accepted the case of the original respondent No.1 and held that he had proved the agreement for sale, his readiness and willingness on his part to perform his part of agreement. However, the trial Court dismissed the suit holding that the decree in earlier suit would operate as resjudicata and binding on the respondent No.1 so, it dismissed the suit. 3] The appellate Court, however, held that the decree in earlier suit was not only collusive but was not binding on the respondent No.1. The suit thus was decreed and so this appeal is filed. 4 S.A.No.156.06 4] The learned Advocate appearing for the appellants contended that if the the appellant Nos 1 to 3, the vendors of the respondent No.1 admitted the title of the appellant No.4 on the ground of adverse possession, the respondent No.1, who was seeking transfer on such property would get squarely affected and he would not get decree of specific performance. However, this issue was discussed by the learned Judge of the First Appellate Court, and after giving cogent reasons he rejected the argument. I find no error in such findings. If ultimately the original respondent No.1 (Plaintiff) could prove that there was valid agreement in his favour, he was ready and willing to perform his part of the contract, his vendors fraudulently inducted third party for defeating his case and if third party was inducted could not prove his title by adverse possession, there was no difficulty for the Courts below to decree the suit. 5] In view of this, there appears no substantial question of law involved in this appeal. The Appeal stands dismissed. Consequently the Civil Application No.2066 of 2006 in Second Appeal No.156 of 2006 stands dismissed. Sd/- (A.V. NIRGUDE, J.) MTK/ok