1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No, 451 of 2001 Mohan Anandrao Deshmukh Appellant/defendant versus Premchand Phulchand Fulpagar Respondent/Plaintiff Shri S.P. Shah, Advocate for the Petitioner. Shri S.V. Gangapurwala, Advocate for the Respondent. CORAM: P.R. Borkar, J. DATE: 9th June 2009. P. C. 1. Present Appellant is original Defendant. He has obtained an agreement for sale from one Parvatabai who claimed to be tenant of Mannalal. Present Respondent is the original Plaintiff and claims to have purchased a plot from Mannalal. The plot is admeasuring 40’ x 80’ as per sale deed dated 25.11.1965. He had filed suit being special civil suit No. 542 of 1999 for possession and mesne profit. Learned Civil Judge, Senior Division, Aurangabad, vide his judgment and order dated 12.3.1999 decreed that suit. Civil Appeal No.180 of 1999 filed against that decree came to be dismissed by Extra Joint District Judge, vide his judgment and order dated 18.9.2001 2. Shri S.P. Shah, learned Advocate for the appellant argued vehemently and submitted that the judgment and decree in question deserves reconsideration in the second appeal as there are certain points which required to be looked into. 3. Shri S.V. Gangapurwala, learned counsel for the Respondent pointed out that Second Appeal No.103 of 1991 has arisen out of the suit by present Respondent Premchand, i.e. Suit No. 294 of 1982 filed in the court of Joint Civil Judge, Junior Division, Aurangabad, against Parvatabai, the vendor of present appellant and her husband Hari s/o Lala Dimber. It was a suit for declaration of 2 ownership of the same plot. The said suit came to be decreed by the Joint Civil Judge, Junior Division, Aurangabad, on 20.9.1984. Regular Civil Appeal No. 186 of 1984 against that judgment and decree came to be filed before the 3rd Additional District Judge, Aurangabad, who, by his judgment and order dated 8.2.1989, dismissed the said appeal and confirmed the decree passed by trial court. 4. Parvatabai and her husband, who were the appellants before the District Court, filed Second Appeal No.103 of 1991 in the High Court, challenging dismissal of their appeal No.186 of 1984 by learned Additional District Judge. Said second appeal came to be dismissed for default, on 14.10.2008. As such, the decree of declaration of ownership regarding the suit plot as against Parvatabai and her husband had become final. Present appellant is claiming right through Parvatabai and not independently. Under these circumstances, Shri S.V. Gangapurwala learned counsel for Respondent in present appeal has submitted that the present appeal itself is not tenable as the same does not survive. 5. The record and Proceeding in Second Appeal No.103 of 1991 is before me and I have gone through the same. It is clear that as a result of dismissal of the said appeal by order dated 14.10.2008, present Respondent Premchand has been declared owner of the suit plot as against Parvatabai prospective vendor of the present appellant. In this view of the matter, present appeal cannot be admitted. The appellant herein is bound by the result of Second Appeal No.103 of 1991. 6. In the circumstances, appeal is dismissed at the admission stage itself. (P.R.BORKAR, J.) pnd/oo sa451.01 3