1 910-sa-592-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj SECOND APPEAL NO.592 OF 2010 Shri Nivrutti T. Sonawane & Others .. Appellants. V/s. Shri Shravan N. Borse & Others .. Respondents. Mr. S. M. Sabrad, for Appellants. Mr. R. D. Suryawanshi, for Respondent No.1. CORAM : G.S.GODBOLE, J. DATE : 8th SEPTEMBER, 2011. P.C.: 1 Heard the learned Advocates for the parties. 2 No notice has been issued to the other Respondents in the Second Appeal. Respondent No.1 is the original Plaintiff in Regular Civil Suit No.103 of 1987 filed in the Court of learned Civil Judge, Junior Division, Chandwad, for partition and separate possession and for a declaration that Sale Deed dated 1st October, 1986 executed by Defendant 2 910-sa-592-2010.sxw No.1 in favour of Defendant No.10 (son of Defendant No.6) in respect of land bearing Gat No.112, is not binding on the 1/5 undivided share of the Plaintiff in the said land. Since, pending the suit, land bearing Gat Nos. 68 and 61 were also alienated by Defendant No.1 in favour of Defendant No. 11 by another Sale Deed dated 19th March, 1994, a declaration was sought that even that Sale Deed is not binding on the Plaintiff. At this stage, it is also necessary to note that again pending the suit, the Sale Deed in respect of part of land bearing Gat No.143 was executed by Defendant No.1 to the extent of 1 hector 8R on 28th March, 1989 in favour of Nirmala N. Borse, which is also produced in the suit and proved as Exhibit 169. The Plaintiff did not seek any amendment in the plaint nor was the said purchaser Mrs. Nirmala N. Borse impleaded. No proceedings of Counter Claim or third party procedure were adopted by any of the Defendants. 3 The suit was contested by Defendant No.1 and other Defendants, raising a defence that there was a prior partition and one land had been exclusively allotted to the share of Plaintiff. It was contended that land bearing Gat No.112 is the self acquired property of Defendant No.1. 4 By Judgment and Order dated 31st March, 2005, the learned Civil Judge, Junior Division, Chandwad partly decreed the suit and granted a declaration that the Sale Deeds dated 1st October, 1986 and 19th March, 3 910-sa-592-2010.sxw 1994 are not binding on the 1/5th share of the Plaintiff. A decree for partition and separate possession was passed in respect of the suit properties except Gat No.143. It was also held that Defendant No.11, whose heirs are the Appellants in the present Second Appeal, was not a bona fide purchaser for value without notice. 5 The heirs of Defendant No.11 filed Regular Civil Appeal No.268 of 2005 in the Court of Additional District & Sessions Judge at Niphad, and Respondent No.1 had filed Cross Objection in respect of the refusal to grant a decree in respect of Gat No. 143. By the impugned Judgment and Order dated 4th August, 2010, the learned District Judge-I, Niphad has dismissed the Appeal filed by the Appellants and allowed the Cross Objection filed by Respondent No.1. Therefore, this Second Appeal has been filed. 6 I have carefully perused the pleadings and the Judgments and heard the learned Advocates for the parties. The learned Advocate for Appellants submits that there was admission in the written statement filed by Defendant Nos.1,2 & 4 to 6 and 10 that land bearing Gat No.68 was given in possession of Original Defendant No.11 by Defendant No.1 since loan was taken by the Defendant No.1 from Defendant No.11 and this was done prior to the suit. It is further submitted that for repayment of the said loan, the Sale Deed of the said land was subsequently executed during 4 910-sa-592-2010.sxw pendency of the suit and, hence, the Sale Deed is binding on the Plaintiff and no decree for partition of this land could not have been passed. It is also submitted that land bearing Gat No.111 had been allotted to the Plaintiff in prior partition and, hence, the suit was not maintainable. 7 The Ld. Advocate for Respondent No.1/ Plaintiff supported the Judgment of the District Court. However, on a query from the Court as to whether the purchaser of portion of land bearing Gat No.143; which alienation was not challenged by amending the plaint, nor was the said purchaser impleaded; whether the decree for partition would affect the area purchased by her is concerned; the learned Advocates for Appellants and Respondent No.1 fairly state that in the absence of any amendment to the plaint and impleadment of that purchaser, the right of that purchaser cannot be affected in execution of this decree and that portion purchased by the such purchaser will have to be kept untouched. This submission deserves to be accepted. 8 I have carefully considered the submission of the learned Advocate for Appellants. On the question of being a bona fide purchaser for value without notice, the plea of Defendant No.11 has not been accepted by the Trial Court and District Court and reasons are given for not accepting said plea. In so far as defence regarding self acquisition of suit property is 5 910-sa-592-2010.sxw concerned, Defendant No.1 has failed to discharge the burden caste upon him and same is the case in respect of defence regarding prior partition. The findings recorded by the Trial Court and the District Court are pure findings of facts and are in consonance with the evidence on record. 9 No question of law arises in the Second Appeal and the same is, therefore, required to be dismissed, subject to the clarification as indicated in paragraph 7 above; that the decree will not affect the purchaser of portion of land bearing Gat No.143, under Sale Deed Dated 28th March, 1989 (Exhibit 169) i.e. Mrs. Nirmala N. Borse. Order accordingly. 10 It is needless to state that as observed by the Trial Court and the Appellate Court, the Sale Deed executed in favour of the predecessor in title of the Appellants is not binding only on the 1/5th share of the Plaintiff and no such declaration has been given in respect of the shares of the other co-parceners. 11 In view of the dismissal of the Second Appeal, Civil Application No. 1573 of 2010 does not survive and same is also dismissed. The earlier interim order passed in the Civil Application stands vacated. (G.S.GODBOLE, J.)