1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.671 of 2009 WITH (WITH CA No.8370 of 2005) 1. Baban Baburao Bhingardive, Age 53 years, Occ: Service, r/o Savedi, Tq. & Dist.Ahmednagar. AND TWO OTHERS. ...APPELLANTS (Appellant No.1 Orig.Deft. No.3 & app.nos. 2 & 3 - Orig.Deft.Nos.9 & 10) VERSUS 1. Laxman Tukaram Rajbhoi, Age: 71 years, Occ: Pensioner & Agri., r/o Ahmednagar, Now r/o at Khedale-Kaja, Tq. Newasa, Dist.Ahmednagar. and eight others. ...RESPONDENTS (R.No.1 and 2 Orig.Pltfs & R.No.3 to 9 Ori.Defts. ... Mr.N.V.Gaware, Adv., for the appellants. Mr.V.S.Bedre, Adv., for the respondent nos. 1 and 2. Respondent No.8 dismissed as per Courts order dt.17.11.2008. ... 2 SECOND APPEAL NO.673 of 2008 (with CA No.8386/2005) 1. Baban Baburao Bhingardive, Age 53 years, Occ: Service, r/o Savedi Tq. & Dist. Ahmednagar. and two others. ...APPELLANTS (Appellant No.1 Orig.deft.No.3 & app.nos. 2 & 3 Orig.Deft. nos.9 & 10.) VERSUS 1. Laxman Tukaram Rajbhoi, Age 71 years, Occ:Pensioner & Agri., r/o Ahmednagar, now r/o at Khedale-Kaja, Tq. Newasa, Dist. Ahmednagar. and eight others. ...RESPONDENTS (R.No.1 and 2 Orig.Pltfs & R.No.3 to 9 Ori.Defts.) ... Mr. N.V.Gaware, Adv., for the appellant. Mr. V.S.Bedre, Adv., for Respondent Nos. 1 and 2. Mr. Y.V.Kakday, Adv., for respondent Nos. 3, 5, 6, 8 and 9. ... CORAM: K.U. CHANDIWAL, J. DATE :16-4-2010 *** 3 PER COURT : 1. Heard. 2. Chequered history of litigation is extensively referred by both the learned Counsel. However, without adverting to all the details, the matter can be put in a condensed form as under. RCS No.176/1997 was preferred by Laxman Rajbhoi against the branch of Sundrabai Bhingardive, which includes Baban Bhingardive. While passing the decree, the learned 5th Joint Civil Judge, Junior Division, Ahmednagar, in clause (2) of his order has observed as under: " The defendant Nos. 1 to 8 are hereby restrained permanently from executing the sale deed of the suit land in favour of the defendant Nos. 9 and 10 or in favour of any other person subject to the decision of appeal which is preferred against the decision of RCS No.240/1975." 3. It is a matter of record, the First Appeal against RCS No.240/1975, being appeal RCA No.199/1982 came to be disposed of. Second Appeal Stamp No.13215/2004 moved by legal representatives of Baburao came to be dismissed on 3rd July, 2009, at the stage of condonation of 4 delay. The Court did not condone the delay, as the remissness shown by the appellant in taking steps for other respondents was demonstrated writ large. 4. The fact remains, the judgment and decree in RCS No.240/1975 by now has reached finality. 5. The decree referred above confines to outcome of RCS No.240/1975. The decree in RCS No.176/1997 was subject of challenge by Laxman in RCA No.376/1998 and by the branch of Baban in RCA No.361/1997. The learned first ad hoc Additional District Judge, Ahmednagar, by common order dt.7.1.2005, modified the order by observing as under: " The judgment and decree passed by the 5th Joint Civil Judge ( J.D.), Ahmednagar, dated 25.11.1996 in Regular Civil Suit No.176 of 1987 is hereby modified as under. The defendant nos. 1 to 8 are hereby restrained permanently from executing the sale deed of entire suit land in favour of the defendant nos. 9 and 10, or any other person. However, they are at liberty to execute the sale deed of the half of the suit land fell to their share." This decree of the first appellate Court is now questioned by Baban by filing two appeals; being 5 appeal Nos.671/2009 and 673/2008. 6. As the decree in RCS No.240/1975 has reached finality, and litigation of RCS No. 176/1987 was only contingent upon decision in RCS No.240/1975, I do not find that the present appeals preferred by Baban involve any substantial questions of law. 7. Mr.Gaware, Counsel, while arguing the appeals, repeatedly pointed out the observation of the learned first appellate Court that the findings in RCS No.240/1975, operate as res judicata and hence, the Second Appeals involve substantial questions of law. I find that the finding of the first appellate Court, though not challenged by the branch of Laxman, however, it will not change the colour and complexion of the decree out of RCS No.240/1975, which was subject matter of RCA No.199/1982, which has been partly allowed as the decree of RCS No.240/1975 was modified, informing, while effecting partition of the plaintiffs half share in the suit properties without affecting plaintiffs ( Plaintiffs of RCS No.240/1975) right, that portion of the suit property be allotted to the share of defendant no.1 Dada which has been already sold. 8. In the above factual matrix, the Second 6 Appeals could not be formulating substantial questions of law, as tried to be addressed by Mr. Gaware. Second Appeals sans merit, dismissed with Civil Applications. No costs. [K.U. CHANDIWAL, J.] agp/671-09sa +