1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 220 OF 2006 WITH CIVIL APPLICATION NO.5754 OF 2007 Somnath s/o Manmath Swami R/o. Shivali, Tq. Ausa, District Latur and another. .. Appellants Versus Vithal s/o Maruti Waghmare, R/o. Shivali, Tq. Ausa, District Latur and others. .. Respondents Mr. V.D. Salunke, Advocate for the appellants. Mr. V.C. Solshe, Advocate for respondent Nos. 1,3 and 4. Mr. Ganesh V. Mohekar, Advocate for respondent No.2. CORAM : K.K. TATED, J. DATE : 25th JUNE, 2009. PER COURT : 1. Heard learned Counsel for the appellants and for respondent Nos. 1 to 4. 2 2. Present Second Appeal is preferred by the original plaintiffs against the judgment and decree dated 20-10-2005 passed by the Additional District Judge, Latur in R.C.A. No. 93/2004 arising out of the judgment and decree dated 30-04-2004 passed by the Joint Civil Judge, Senior Division, Latur in Special Civil Suit No. 67/2001. (Hereinafter parties are referred to as they were referred in the trial Court). 3. Undisputed facts are that the plaintiffs and defendant No. 2 are the sons and father respectively. Defendant No. 2 owned field Gat No.686 area 84 Are, Gat NO. 685 area 4 Are and Gat No. 689 area 2 Hector 46 Are situated at village Shivali, Tq. Ausa District Latur. The plaintiffs have sister Nilubai. She was married in the year 1982 and went to reside with her husband. The plaintiffs are residing separately from their father since the year 1981-82. The 7/12 extract of the land of the aforesaid Gat 3 Numbers Exhibit-44 to 46 shows that names of the plaintiffs are recorded in respect of Gat No. 689 and to the extent of 2 Anna share each in Gat No. 685 and suit land Gat No. 686 is exclusively recorded in the name of father defendant No. 2 since the year 1981-82. The plaintiffs and defendants were separately in exclusive enjoyment of the lands recorded in their names in 7/12 extracts. 4. The case of the appellants - plaintiffs was that suit land Gat No. 689 and 685 was joint family property of the appellants and their father respondent No.2 - defendant No. 2 and defendant No. 1 fraudulently got executed agreement to sell and later on sale deed in respect of the suit land i. e. Gat No.686 in his favour without payment of any amount, only by representing defendant No. 2 that he would obtain concession passed for him from S.T. Department. It is the case of the plaintiffs 4 that the suit land is joint family property of themselves and their father defendant No. 2 and sale deed Exhibit-47 and agreement Exhibit-62 and receipt Exhibit-63 fraudulently got executed by defendant No. 1 from defendant No. 2 and his wife ( i. e. mother of plaintiffs )were not binding on them and similarly sale deed Exhibit-47 executed by defendant No. 1 in favour of defendant Nos. 3 and 4 was also not binding on them. On these averments, they claimed following reliefs. "(1) It be declared that the act of the defendant No.1, 3 and 4 is illegal and against the provisions of law, and the said sale deed is not outright sale transaction, and it has managed by misrepresentation and by playing fraud upon the defendant No. 2, with further declaration that the said sale transaction bearing Day Book No. 2904 dated 16-11-2000 and 30-04-2001, is illegal, null and void and not binding upon the defendant No. 2 and the plaintiffs being co-parceners of the defendant No. 2. (2) A decree of perpetual injunction may kindly be drawn in favour of the plaintiffs and 5 against the defendants 1,3, & 4 restraining them from alienating the suit land Gat No. 686 adm. 85 R of village Shivali, Tq. Ausa Dist. Latur as described in plaint para No. 3 in part of whole, or to transfer, encumber or to record, it on their names to revenue record, in any manner, under any pretext, by awarding a decree in that regard. (3) A decree of possession may kindly be drawn in favour of the plaintiffs and defendant No. 2, being their family property, and against the defendants 1,3 and 4, directing them to hand over the possession of suit land, in favour of them, in due course of law." 5. Along with the Counsel for the parties, I have gone through the evidence on record and the judgment of the two Courts below. As per submission of the Counsel for the appellants, two Courts below erred in recording finding on issues arising on the pleadings of the parties against the appellants. The evidence of plaintiff No.2 and that of the defendant No. 2 which did not appear to support claim of the appellants, but was examined by the plaintiffs 6 and the other witnesses mentioned above, as observed by the learned appellate Court at Para 29 of his judgment, there is collusion between the plaintiffs and their father, defendant No. 2 and suit was filed by the plaintiffs in collusion with their father. Oral evidence supported by the entries in 7/12 extracts in respect of the suit land since 1981-82 when the parties started residing separately clearly proves that there was partition of the joint family property and the suit land Gat No. 686 was allotted to the share of defendant No.2 and he was exclusively cultivating and taking the crops from that land. Both the Courts have properly appreciated the evidence on record and correctly recorded the finding that defendant No. 2 owned suit land separately and plaintiffs failed to prove that it was joint family property when the defendant No. 2 sold the same to the defendant No.1. Both the Courts have held that no fraud alleged by the plaintiffs was 7 practiced by defendant No. 1 on the defendant No. 2. They have also hold that defendant No. 2 received full consideration as stated in the agreement of sale and the sale deed executed by defendant No. 2 and his wife in favour of defendant No.1. Learned Counsel for the appellants did not point out any legal infirmity in the appreciation of evidence by two Courts below and also in the concurrent findings of the facts recorded by them. Therefore, there is no substantial question of law involved in the present second appeal and same is dismissed summarily with no order as to costs. 6. In view of the dismissal of Second Appeal summarily, nothing survives in the Civil Application and same stands rejected. [ K.K. TATED, J.] sut/JUN09/sa220.06